An excerpt from the diary of a Janisar lawyer
Following is an excerpt from the diary of a Janisar lawyer:
O father I am about to sin!
O Pater, of this black-coated familia; O father of the gowned brethren; O virtue of public interest litigation; O wielder of suo-moto powers; O fuel of judicial activism; O Excalibur of judicial independence; O repository of all contempt powers; O provider of the daily Breaking News… the new judicial year is about to kick-off, and with it the countdown of your last hundred days of Pater familias-dom! And this fact is a damning reality for countless lawyers in the generations to come, who will have the misfortune of practicing in a world where your towering shadow is no longer cast across the horizon of our jurisprudence.
O Pater, as these next 100 days pass, I fear that the brethren judges who you have very dexterously sent away from the principal seat of the Supreme Court, or kept away from the ‘important’ cases – lest their brand of judicial restraint taint the fabric of our law – might make a comeback! It saddens me to imagine that the spirit and mandate of the black letter law might once again have its day. I shudder at the thought that, in your absence, the minor inconvenience of ‘due process of law’ might stand in the way of putting high-profile offenders behind bars. I cringe at the notion that your successors might shy away from adopting your crusade of cleansing our society through the holy-water of Article 184(3).
O Pater, what if we revert to the age when judges decided each case within the contours of the law, instead of stepping beyond such arbitrary barriers to ‘fix’ the larger malady? What if, after you, the bench starts treating the accused as innocent, until proven guilty! What if FIA and NAB are allowed to conduct independent investigations, per the mandate of their respective laws, instead of being ‘directed’ to file references against those who we all ‘know’ are corrupt?
O Pater, I dread the day that your talismanic suo-moto powers might be caged within some construct of consistency. Like Zeus’ thunderbolts (drone strikes?), you have wielded these powers to strike at evil, as and when you please, in defence of the public and its interest. You have wisely set no particular threshold or principle to trigger a note from the honorable Registrar, or news-item of some bearded investigative journalist, culminating in suo-moto action. And it is perhaps because of this very reason – the principles of suo-moto being a secret to all, but you – that our nation and its government functionaries stay at their toes; anyone, anytime, can be hauled in and held accountable. I tremble at the thought that others in your seat might be lured into the repulsive idea of injecting structure into our suo-moto jurisprudence.
O Pater, and what of dissent? What if the carefully crafted solidarity that you have distilled from this bench, crumbles into a spectrum of dissent? What if 17-0 judgments become 16-1, or worse yet, 9-8? What if the ideal of institutional solidarity, which you have held together with your bare hands, gives way to individual opinions? What if judges become so daring as to recognize that each one of them has the same weight on the bench as the chief justice? What if they become so bold as to voice themselves, in pursuit of furthering jurisprudence? And what if, one day, this unnecessary intellectual honesty forces irreverence to the sacrosanct idea of Pater Familias itself?
O Pater, and on that note, I fear that that after 100 days, the idea of ‘Pater Familias’ itself might get diluted. There may be a certain lack of trembling in the presence of your successors. This familias, might come to the realization that there is no such thing as a ‘pater’. That the bar, in order to be truly independent, must not swear fidelity to the seat of any one judge. That all judges of the court are equal in stature, and in their judicial authority. That being in the Pater’s camp should not be a condition precedent for hearing ‘important’ cases. In fact, pursuing some deluded dream of transparency, those who come to occupy your office might decide that even bench formation and case allocation could be done in a non-arbitrary and automated fashion, curtailing the office of Pater Familias to being only ceremonial in nature. I think of such a day, and shudder.
O Pater, and if the world really descends into chaos, we might see a day when young and enterprising doctors, in receipt of hundreds of millions of rupees, are called to account by a society bent upon maligning the sacred name of their fathers! And what if, that day, no bench, realizing the ‘larger conspiracy’ afoot, wisely dismisses the issue to safeguard the judicial integrity and independence?
O Pater, after these 100 days, what if the mystique of the judicial appointment process is opened to public scrutiny? What if the hegemony of your office, over the initiation of judicial appointments, is broken, to include others? What if the rule of seniority, as applied all across the land (e.g. Tariq Azizuddin’s case) is also needlessly followed in appointing the chief justice of provincial or Islamabad High Court? What if the principle of not granting extensions post-retirement, as applicable to civil servants, is venomously applied to the office of the registrar of the Supreme Court? What if the person in your chair comes to the abominable conclusion that there is no qualm in opening judicial accounts to public scrutiny and audit? What if the judges and officers of the court are subjected to the same law of this land that all other wretched folk are subjected to? What if the Supreme Court no longer appears in the daily newspaper or hourly ‘breaking news’? What if contempt is only confined to the idea of ‘obstructing justice’, and commenting on judicial conduct becomes fair game? What if, God forbid, boorish lawyers, unscrupulous legislators, and insolent columnists can no longer be silenced through a show-cause notice?
These fears haunt me, O Pater! I do not wish to live and breathe in such a world. The Holy book says that God, once, stopped the sun in the sky to give Joshua more time to defeat the Amorites. If only we could pray for God to slow down the sun on these next 100 days.
The writer is a lawyer based in Lahore. He has a Masters in Constitutional Law from Harvard Law School. He can be reached at: [email protected]