Research finds that ordinary Pakistanis lack access to justice on account of the enormous costs involved
Access to justice has been the cornerstone of securing fundamental human rights in the developed societies across the world. The constitution of Pakistan promises access to justice without discrimination of any kind. The ground reality may be different.
Justice, here, appears to be an economic commodity in that it is responsive to factors like supply and demand so that price plays a key role in the framework. In a market situation, willingness to pay for a commodity or service is called demand and willingness to provide the commodity or service at that price is called supply. If there is perfect competition in a market the price mechanism works at its most efficient.
In a perfectly competitive market, those willing to pay a higher price will crowd out those willing to pay a lower price. On the supply side, a low willingness to provide the service at a low price will act similarly. This mechanism generates an equilibrium position between the consumer and the supplier. The outcome is considered optimal – a situation where goods and services flow towards those most willing to pay a competitive price for those. Resultantly, the supplier’s surplus is relished by those who were willing to pay a higher price, but actually pay a bit lower. Among suppliers there is willingness to accept a lower price but they actually get more than that.
The market for justice operates on the same pattern, having two sides of a conventional market structure, i.e. a demand side – litigants who are pursuing justice and are ready to pay the price for it, and the supply side – lawyers who are eager to assist in the provision of justice at a particular price. Consequently, an equilibrium price is reached with an outcome such that only those who can afford and are willing to pay the specific price have access to justice. Those who cannot pay the price are barred from access to justice. The point to note here is that this holds true if there is perfect competition in the market for justice.
However, perfect competition does not exist as a result of information asymmetry in terms of due process of justice at the consumer end. Using this dysfunctionality to their advantage, certain lawyers enjoy a monopoly over the justice market.
The justice market can also be seen as a tourist model market, where those seeking justice visit a lawyer, and then there seems to be no incentive for them to seek another lawyer. The information asymmetry thus adds to the transaction cost. Such a set-up puts lawyers at an advantage in bargaining so that they can ask for a much higher price resulting in greater exclusion. Thus, an equilibrium point is attained where only those who can afford to pay a high price have access to justice.
Justice, here, appears to be an economic commodity. This would mean that justice is responsive to factors like supply and demand, and price plays a key role in the framework.
In Pakistan, the inclusion of lawyers in the process of justice without proper checks and balances is an impediment on the demand side. There are generally two parties to a dispute. Technically, they require a third party to facilitate in solving their dispute without being party to it.
Thus, in principle, the third party which happens to be lawyers, should not have any monetary incentives attached to the case they are handling. Attaching monetary benefits to the case proceedings is a big hurdle in access to justice. The longer a case continues, the greater its monetary value to the lawyers. In cases of a serious nature, the demand for justice is more inelastic – which means that people have to pay whatever price is demanded – and lawyers have an advantage. The compulsions or constraints of the common man make the justice market more favourable for lawyers, eventually making access to justice costly.
Latest research by the Pakistan Institute of Development Economics (PIDE) has found that a litigant has to wait for almost four years on average while settling a case in a civil or magisterial court. Additionally, the litigant may have to appear 40 times on average before the court for hearings in the four-year period. A point worth mentioning here is that out of 40 times, on average, 15 times the litigants face rescheduling of a hearing. It does not end there: after waiting for almost four years, the litigants may have to wait an extra three years on average for the thorough disposal of the case. In all this, the litigants have to bear the cost of legal fees (almost Rs. 65,000). When other costs are added, including the cost of conveyance, accommodation and meals, the price of justice is much greater than envisaged.
Based on the latest data available from Household Integrated Economic Survey (HIES 2018-19), the average income of a Pakistani household per annum is approximately Rs 498,540. The average earnings of a household in rural and urban areas of Pakistan are Rs 414,240 and Rs 636,120, respectively, whereas the average expenses are around Rs 445,908 per annum. Likewise, for rural and urban households, the average expenses per annum are Rs 370,896 and Rs 568,344, respectively. So, on average, a common Pakistani’s expenditure accounts for around 90 per cent of the household income.
Therefore, average household savings per annum are around Rs 52,000. If faced with a legal matter in the civil court, the household will be unable to pay the legal fees, which could amount to Rs 65,000, not to mention other costs incurred during the case’s total life. The fees for litigation in higher courts are higher than that of the civil courts, so they are out of the reach of an ordinary citizen.
So, if we compare cost, income, expenditure and savings, the picture is quite gloomy. If we take the average cost of the lowest court, it amounts to Rs 117,000. Whereas the average income and expenditure per annum are Rs 35,662 and Rs 32,578. This means that, on average, the savings of a common Pakistani is Rs 3,084 per annum. If we compare the cost and savings, access to justice is beyond the means. The government by law provides a prosecutor in such cases, but implementation is in shambles. Meanwhile, there is no strong incentive for the lawyer to take a deep interest in the case.
Hence, it can be concluded that access to justice is very challenging, if not unmanageable, in civil courts for a common Pakistani citizen. This indicates that, on average, an ordinary Pakistani citizen has to borrow or sell some of their possessions to contest a case in civil courts. It is noteworthy to mention that the calculations are centred on the assumption that a household faces only one legal matter in a year and that the household does not face any other emergency like a health issue during its course. Imagine the situation if it is otherwise.
The writer is a research economist at the Pakistan Institute of Development Economics, Islamabad