Weak knees for such aggressive posture
Who will guard the guards? The people. The judiciary seems not to be at ease since the establishment of military courts through the 21st constitutional amendment passed in wake of the tragedy in the Army Public School Peshawar. This amendment has been challenged before the Supreme Court of Pakistan, which has concluded hearing and reserved its judgment. In fact, the SC is facing a difficult constitutional and socio-political question. On the one hand, the judiciary has to uphold constitutional principles i.e., the due process of law, the separation of powers, the independence of judiciary. On the other hand, it has to appreciate the concerns and grievances of the people subjected to heinous terrorism. Thus, any answer to this question is bound to augment a hot debate as to the independence of judiciary, legitimacy and capacity of the civil judicial system to deliver justice, and the role and ability of the parliament, military, and other law enforcement agencies to fight against terrorism.
The judiciary is considered to be one of the important pillars of state. So, stability of any state largely depends on the judicial and legal system. In Pakistan, however, the judiciary seems to fall short of higher expectations of the people. Some consider that the judiciary has failed to deliver its basic duty; timely delivery of justice. The constitution and the fundamental rights have a sacred status in theory. However, in practice, it makes little sense to those who have been unable to reap its benefits since 1947. Even after the successful lawyer’s movement, the people have to see its real gain in terms of the delivery of justice to the common man. This ambivalent state of affairs may partly be attributed to both the bench and the bar.
Law has been a profession of the nobles and great leaders in history. Abraham Lincoln, Nelson Mandela, Muhammad Ali Jinnah, and Muhammad Iqbal are just a few examples
The Bar is a professional body of lawyers. Law has been a profession of the nobles and great leaders in history. Abraham Lincoln, Nelson Mandela, Muhammad Ali Jinnah, and Muhammad Iqbal are just a few examples. It is a profession of humility, reverence, and wisdom. The lawyers submit ‘respectfully’ and pray ‘humbly’. They are called ‘learned friends’. They are also credited for struggling for the protection of the rule of law in the country. They stand firmly and speak boldly for the voiceless and weak. They have been a ray of hope for the hopeless people throughout the constitutional and political history of the world. Unfortunately, this aura is changing fast in Pakistan.
Some black sheep in the legal profession seem to believe in belligerence and hooliganism. This ‘special edition’ in the legal fraternity is an unwanted outcome of the lawyer’s movement. This brand of lawyers thrashes police officials, court staff, and even judges. They state that violence, as reflected in the Daska event, is the only or the most effective way of registering protest. They consider that torching public property, blocking roads, and boycotting the courts is justified when other institutions fail to act in accordance with the law. They ‘take on’ the bench and their own colleagues as an art or part of advocacy. So, the Bar should think about these questions: How can we improve our judicial and legal system? How can we shine the dark corners of rights with the light of law? How can we spread the fragrance of justice and peace in our society? And, how can we make ourselves accountable to law of the land?
The Bench is a fountain of justice. It is the last hope of the lost people. Delivering justice is the characteristic of God and the best virtue. Great judges in history decided against even their close relatives and the most powerful. Prophet Muhammad (PBUH), Caliph Umar (RA), Justice Marshall, Lord Denning, and Justice Cornelius are a few examples. These men shaped history by upholding the rule of law and justice in their lands. The judiciary in Pakistan has also succeeded to some extent in providing a kind of check on the excesses of the executive and nullifying laws against the constitution and fundamental rights of the people.
At the same time, there are spaces where the judiciary is expected to do more. It should ensure constitutionally promised ‘expeditious justice’ to the people. It should be accountable to the public. It should make the appointment process more transparent as it will lend further credibility and independence to the judiciary. Historically, the president had some role in the appointment of superior court judges in consultation with the Chief Justice of Pakistan. Latter, the advice of the Chief Justice was made almost binding on the president through Al-Jehad Trust case (PLD 1996 SC 324). The Chief Justice then became a sole arbitrator causing a sort of disparity in the entire process.
The 18th amendment attempted to make the appointment process of judges little inclusive by allocating some role to the Parliamentary Committee (Art.175-A). However, this resulted in a tug of war between the parliament and the judiciary, and in2010, the judiciary declared Art.175 A against the basic structure of the constitution. Soon thereafter, the 19th amendment was passed, confirming once again the dominance of the judiciary over the appointment process. Munir Bhatti’s case (PLD 2011 SC 407) and the Presidential Reference No. 01 of 2012 (PLD 2013 SC 279), reverted effects of the 18th amendment. But, this may not be an end of history. There is still a possibility of transformation. A few examples from other countries may be useful here.
In the United States, the Senate Judiciary Committee consisting of 18 members has due role in the appointment process. In Canada, the lawyers submit a written application to a screening committee consisting of judges, lawyers, government officials and other public members. In the United Kingdom, applications are invited by public advertisement for vacancies in the High Court. In Bulgaria and Poland the National Judicial Council consists of twenty five members. Likewise, In Pakistan, the Judicial Commission may also provide a fair representation to the judicial, legal, and non-legal members. The recommendation of the Judicial Commission may also be discussed in a select committee of the parliament. The judicial appointments should be pinnacle of an open process involving applications, interviews, and practical assessment of judicial skills. The people should have access as to why a particular lawyer has been preferred for appointment, confirmation, and promotion over others.
Another important area for reforms is case management. Technology has to play its part too for development of an efficient system for fixation of cases for hearing. Only those cases should be fixed which are to be decided on a particular day. Time slot for hearing may also be allotted to each case. In our courts, fresh cases gradually grow older and then become the ‘oldest cases’. The ‘oldest cases’ are fixed and the rest are left to get older. In Lahore, these cases are now displayed on a red coloured list as an ornament on the face of our court rooms, reminding us the fate of expeditious justice. The people pursuing those also become the ‘oldest generation of litigants’ along the way to justice. Their ancestors, perhaps, are waiting for justice in their graves believing that they will get justice on the Day of Judgment.
Some black sheep in the legal profession seem to believe in belligerence and hooliganism. This ‘special edition’ in the legal fraternity is an unwanted outcome of the lawyer’s movement
How to get out of this situation? In this regard, cooperation between the bench and the bar is essential for timely delivery of justice. Being the wheels of the same chariot, they need to work together to provide justice to the people (at least in their life time). The culture of ‘left over and adjournment’ of cases must be discouraged as almost each case file reveals certain sad but real facts that the case is adjourned: due to the strike of lawyers, leave of the court, absence of the lawyer due to one reason or the other, non-preparation of the lawyers, absence of record or evidence, non-appearance of the parties, etc. Sometimes, the cases are left over due to painfully slow proceedings of the courts and unnecessary or irrelevant arguments of the lawyers. Precision and logic in the arguments of lawyers and also in judgments is fast becoming a relic. Moreover, lawyers and judges need continuous training like any other profession. Apart from their jurisprudential orientation, they may also be trained in management skills like case management, court management, and time management. The Bench and Bar both also need to coordinate with the institutions of legal education for bridging the gap between theory and practice of law, and also to check the mushroom growth of substandard law schools.
It is often claimed by the black-coat community that we have buried the monster of the ‘doctrine of necessity’ forever. In the context of the constitutional litigation on military courts in the Supreme Court, this monster is imminent. I am afraid without first fighting with the menace of delay in decisions of cases, left over and adjournments, tussle between the Bench and the Bar, professional incompetence, lack of integrity and sense of duty and discipline, mismanagement and corruption, unnecessary strikes, and boycotting the courts, monster of ‘necessity’ will die hard. By the way, how can our justice system be strong without opting an objective, open, and inclusive appointment process saying good bye to the age of judicial mystique? How can the judiciary score its full independence and respect without delivering quick justice to the people? How can judges command authority without wearing laws on their sleeves? How can the Bar claim any victory over others without first putting its own house in order? How can the lawyers earn professional dignity without learning the law, assisting the courts proper, and thus, helping the people in protecting their rights? How can justice make sense to an ordinary person without the protection of one’s rights? And, finally, how can the empire of law govern without providing due process of law, equal protection of law, and access to justice to the people? So, let’s bow before the ‘majesty of law’ in order to promote the rule of law and protect the monument of justice in Pakistan.