Throughout Pakistans history, lawyers have played a prominent role in support of democracy both as individuals and as a social group. The show of power they put up in defence of an independent judiciary between March 2007 and March 2009 was however unprecedented. What is more, successive chairmen of the Supreme Court Bar Association (SCBA) like Munir Malik, Aitzaz Ahsan and Ali Ahmad Kurd were in the forefront of the struggle. The SCBA was thus reincarnated into something altogether different.
The election of Asma Jahangir as SCBA chairperson is therefore bound to arouse expectations. Many hope she would a play a role in strengthening democracy and making the system more responsive to the problems of the common man, all the more so because she is considered to be an outstanding champion of human rights. The charter of the SCBA visualizes the associations role as an independent Bar whose aim is to uphold the rule of law and the cause of justice and protect the interest of the legal profession as well as that of the public. The role requires that the apex lawyers organization take a stand for rule of law and good governance which alone can help undo social injustice.
To uphold the rule of law, there is a need to pressure all the three organs of the state, the legislature, executive and judiciary, to remain within the sphere defined for them in the constitution and avoid transgressing into one anothers turf.
As things stand, these institutions have suffered under successive military regimes. With democracy taking roots once again, all the three are tasting power after a long time which sometime leads them to making territorial claims outside their defined sphere.
Elected representatives sitting in assemblies and the Senate claim that parliament is sovereign and is responsible to none except their electorate and that too at the end of their five year tenure. They resent whenever reminded that they can act only within the limits defined in the constitution and the law of the land. Many are used to persecuting political opponents and silencing critics through police and other organs of bureaucracy.
The executive believes it has the license to transcend rules and regulations, indulge in cronyism, misuse authority, disregard rules of business, and appoint favourites in bureaucracy to choice jobs to help them bend laws and regulations. The executive fails to realize the importance of good governance and report after report by Transparency International has indicated that corruption remains endemic. Those in power at the center and the provinces resent whenever the courts try to undo the wrongs committed by them or stop them when they try to break laws.
Meanwhile, security agencies who enjoyed unrestrained power under military rulers in pursuit of their agendas continue to act as laws unto themselves.
The judiciary which has gained independence as a result of the lawyers movement supported by civil society and political parties maintains that it is taking suo motu notice to protect the common man from lawbreakers. As it tries to provide remedy to the man in the street, it often enters areas totally unknown to it. While in the process it has done some good, it has also created lot of problems. Through suo motu actions, the judiciary has tried to bring down prices of essential commodities, regulate traffic and dismantle unauthorized high rise buildings, at times producing unintended results. While choosing to take up cases of national importance, the Supreme Court decides which one to delay indefinitely and which one to hear urgently. Thus the petition of Air Marshal (rtd)Asghar Khan against funding of political parties by the ISI continues to gather dust for over a decade.
The lawyers elated by their victory over Musharraf tend to forget sometimes that display of power without a sense of responsibility can be disastrous. Beginning with the manhandling fellow lawyers during the movement, sometime blackening the faces of those opposed to the restoration of independent judiciary, they have subsequently beaten up police officials, common litigants and media teams inside the courts premises.
What one expects from the SCBA chairperson is to avoid siding blindly with any of the institutions or defending lawbreakers in her own community simply because they happen to be part of her constituency.
The legislature needs to be reminded that sovereignty belongs to the people and that parliament only exercises powers in their name. Lawmakers have to serve the masses instead of lording over them.
The executive has to be told it needs to act strictly in accordance with the constitution and the law, follow rules and regulations and introduce good governance. The government needs to be prodded to rein in security agencies. The rogue elements among the lawyers community have to be reprimanded and regulations that relate to the behaviour of the lawyers strictly enforced.
The Supreme Court has to be reminded that it cannot rewrite the constitution in the name of interpreting it. Further, while interpreting the basic law, the court has to keep in view the fact that that society continues to change and develop. The court has therefore to look forward rather than backward while interpreting the constitution. Moreover, it must not be seen to be catering to the peoples prejudices or playing to the crowds.
A long list of demands, but keeping in view the energy and zeal displayed by her as a human rights activist the expectations are not unrealistic.
The writer is a former academic and a political analyst.
