After struggle for judiciary’s independence,
now it must be for due process, non-partisanship
No need to be unhappy that our institutions are unravelling for this is how states are painfully cleansed by the societal evolutionary process. Our current systems and institutions are not delivering while the condition of the majority deteriorates. We are moving in the right direction, towards alien systems self-destructing rather than destruction by outside hands that prolongs the life of these mutants that mutates them further.
Others see this as regression because they look at things only through the lens of alien social, political and legal norms, precepts and constructs. They don’t see that mutant institutions don’t stand a chance because they are programmed to provide for a small charmed minority, not the vast majority of poor citizens in incremental degradation. They are not programmed to provide for the majority because, lacking original thought, we ape our former colonizer. This ‘regression’ means that we are actually progressing, moving on from the colonizer’s systems and institutions to ones that work for the majority.
To parade ‘success’ of this system they vaunt the democratic end of one elected government and the election of another, and the departure of one elected president and the election of another. That’s form. Where’s the substance? Has the country gone up or down in the last five years? Are the people better off? Their argument will now be: keep following form, the substance will follow. Forsooth. In the long term we are all dead.
Of all our institutions, the most important are the three branches of government: the legislature-parliament, the executive and the judiciary. All other institutions come under them. All three have been unravelling by their own hand – their behaviour, their lack of understanding of democracy and their constitutional functions, and poor capacity. However, it is the third branch that we are most concerned with here, for without a functioning judiciary no society can function – leave alone a state that wishes to be taken seriously as a good ape of western-style electoral democracy.
That respect is earned, not demanded regardless of station in life is axiomatic. While considering the twin concepts of contempt of court and freedom of speech, we should keep this in mind. Persons and institutions earn respect by their behaviour and performance, not by threat or fright. Judges should speak only through their judgments. The flip side is that judges are judged by their judgments, behaviour and general reputation for if people don’t respect them they won’t have confidence in their judgments.
Lord Denning famously said that “contempt of court is a preserve of the judges but a jurisdiction we will most sparingly exercise: more particularly as we ourselves have an interest in the matter…we will never use this jurisdiction as a means to uphold our own dignity. That must rest on surer foundations. Nor will we use it to suppress those who speak against us… there is something far more important: it is no less than the freedom of speech itself. It is the right of every man… to make fair comment… on matters of public interest…We must rely on our conduct itself to be its vindication.” It follows therefore that since judges cannot defend themselves it is our duty to defend them when they are unfairly criticized or their dignity eroded.
Echoing the same sentiment the Lahore High Court Bar Association (LHCBA) that had struggled for the restoration of the sacked judges of the superior courts, passed a resolution that, according newspaper reports, says: “The contempt law should only be used when court orders were not being implemented, not as a tool to silence dissenters.” The use of the contempt law “to usurp the right of freedom of expression” was condemned and “deletion of sections of the law allowing judges to issue contempt of court notices in order to protect the court’s dignity” was demanded. “The courts should protect their dignity through their verdicts rather than the contempt law.”
Said the LHCBA president: “The bar association would set up a five-member committee to look into cases of judicial misconduct. The bar would launch a campaign of protests against judges found to have misbehaved. Lawyers would lock the courtrooms of these judges and not allow them to conduct proceedings.” This ‘contempt of bar committee’ will identify and act against judges who misbehave with lawyers and look into cases of judicial misconduct. This effectively means that the LHBCA has become the de facto Supreme Judicial Council that inquires into the conduct of judges if a reference is filed against them. Worse, the LHCBA has become policeman of judges’ behaviour. Others bars may follow. It’s Bench versus Bar. It’s “shameful” for us and them. The public perception that judges have brought this upon themselves by their rampant use of the contempt law and suo moto powers is sad.
Many leading lights of the lawyers’ movement for the restoration of judges have turned. Ali Ahmed Kurd, a lawyer from Balochistan and a former president of the Supreme Court Bar Association (SCBA), was perhaps the most vocal of the movement’s leaders, and certainly the most passionate. He said at the LHCBA meeting that, “When lawyers were protesting for judicial independence, they burned several judgments but were never held in contempt. Lawyers had fought hard to restore the judiciary, some even laying down their lives, but now the judges were seeking to restrict lawyers’ freedom.” He held the chief justice of Pakistan responsible for not taking notice of the arson and killings in Balochistan. “Only in Pakistan did judges issue contempt of court notices over minor criticism,” said Kurd. “In other countries, people had the right to freedom of expression, which included criticism of judgments.”
Aitzaz Ahsan, the supremo of the lawyers’ movement and also a former president of the SCBA, said that, “once issued, judgments were public property that could be criticized by anyone… Nawaz Sharif had not been issued a contempt notice when, in 1997-98, he had publicly threatened to kick out judges who supported the PPP.” As they say, no matter how high it is raised, water eventually finds its level.
Might I suggest that judges and lawyers undertake introspection and self-analysis? The judges should ask how and why they have slid down the high pedestal they were placed on. The same Imran Khan who was telling the populace to follow the chief justice to get their problems alleviated was hauled up for contempt of court by the same chief justice for calling the judiciary’s role in the elections “shameful”. Happily, the Supreme Court has disposed of the case after Imran’s second explanation that he had called the acts of the lower judiciary “shameful”, not of the superior judiciary. Fine, but the lower judiciary is under the superior judiciary and the chief justice is the head of the judiciary. Why hasn’t he taken notice of the alleged behaviour of the lower judiciary? In doing so he would strengthen respect for the judiciary and uphold its dignity. Imran Khan’s case brought the contempt law into sharp focus.
Why are Aitzaz Ahsan, Kurd and many others who fought tooth and nail for the judges on the streets, in courtrooms, in newspapers, on television and in social gatherings and got foreign awards for their pains too now so critical of the same judges? What goes round comes around very fast these days.
One feels for the lawyers who successfully struggled for the restoration of the judges. Introspection and self-analysis is necessary for them too. They fought for a vital principle, the independence of the judiciary, but didn’t realize that while the principle of judicial independence is indivisible, wanting judges damage that principle first and foremost. Pakistanis saying half-mockingly, “Hire a judge, not a lawyer” betrays how much respect they have for them, the lower judiciary especially. When the judiciary loses respect and dignity by its own doings the principle of independence goes down the drain. The principle has to be cast in reality else it is lost. When principles are borrowed from colonizers and realities are crafted in foreign philosophies, the principle gets lost, especially when you piously espouse another creed, but hypocritically. While we ape alien forms we don’t know how to ape the alien’s methods of translating principles into action. So we create hollow facades without substance due to our lack of understanding of alien constructs.
In addition to contempt of court and suo moto laws, the bar should also be concerned about partisanship that is so evident in the cases against Gen Pervez Musharraf, the non-implementation of Asghar Khan’s case judgment and the way the alleged corruption of the chief justice’s son has been swept under the carpet. A judiciary must not only be non-partisan but also be seen to be non-partisan else it will lose its respect, dignity and independence. The lawyers who became heroes during the lawyers’ movement and were also placed on a high pedestal have slipped down too. Here’s a cute idea: to get back on their high pedestal again, why don’t the same lawyers take up Musharraf’s cases to demonstrate that they struggle for principles, not people? Their earlier struggle was for the independence of the judiciary. Now it should be for due process and non-partisanship, to put the blindfold back onto the eyes of the statue holding the scales symbolizing that justice is blind and balanced. That is what makes for balance and equity.
The writer is a political analyst. He can be contacted at humayun.gauhar786@gmail.com