From rule of law to rule of judges
When the lawyers’ movement gave birth to the Black Coat Protests in 2007, Pakistan was ready for a new world. If restored, the revived judiciary was to deliver Eden to the people backing it — more than half a decade later Eden is nowhere in sight.
Why wasn’t the movement able to deliver the results it had promised to the people? Chaudhry Shoaib Saleem, Advocate High Courts, thinks that the movement is a little misunderstood by the people.
“I think that the lawyer’s movement was just a motivational movement, and it provided an impetus to the legal fraternity in the sense that they realised that they needed to unite against dictatorship, against unconstitutionality and for the supremacy of law,” he said.
Saleem feels that the expectations attached to the movement are unfair. “Pakistan had a leadership gap and people wrongly attached their hopes to the movement thinking that the ripple effect of the revolution would extend to every aspect of life — which did not happen. Despite the expectations being there the infrastructure that the government needed to provide to the judiciary, along with the system of prosecution, was never delivered,” he asserted.
“In such circumstances, there was hope but the other material factors required to substantiate said hope never existed/weren’t delivered — and all such hopes were in effect destined to shatter eventually,” he added.
A senior corporate lawyer, Usman Ghazi, rubbished the idea that the movement has anything to do with improving anything. “The lawyers’ movement was meant for the restoration of the dignity of the judiciary because it started when the former chief justice was removed in an illegal and unconstitutional manner,” he said.
Ghazi believes that the revolution that people are waiting for was never promised. “It was not meant to bring a revolution or change in the judicial system itself; it was a backlash against a military dictator and the removal of somebody from the judiciary,” he opined.
“The point was not to ensure justice to the people, nor was it meant to provide speedy justice to the people. The point was that somebody should stand up to the dictator’s rule and judges have been doing this for quite some time,” he asserted.
How did a movement such as this become one for the people, by the people, then? Ghazi felt that it was just how the situation shaped itself. “Once the CJ’s court was restored they thought that since it wasn’t just lawyers but ordinary people too that had joined the movement, some benefit should also come to them. And that was done through the introduction of different judicial policies; for instance the policy regarding earlier disposal of case, appointment of more judges, and therefore number of judges also increased,” he said.
Saad Rasool, a lawyer and columnist, doesn’t share that sentiment at all and doesn’t see the situation as a black and white affair.
“There is no doubt about the fact that the results of the lawyers’ movement have not lived up to the promise. The movement itself was for the right cause i.e., restoring constitutional judges, and in the process ousting the military dictatorship which was a constitutional aberration. However, somewhere in the process what we did was create demigods out of individuals,” he said.
‘Once the CJ’s court was restored they thought that since it wasn’t just lawyers but ordinary people too that had joined the movement, some benefit should also come to them’
Rasool highlighted that at some point the movement lost its core emphasis on the judiciary and rule of law and instead became fixated on the former chief justice and his followers. “In history whenever we idolise human beings over principles we set ourselves up for a number of colossal mistakes,” he said and added: “Those human beings start to believe that they are above the same rules that apply to everyone else, that their word and their heroics alone is the law, and that’s what kind of happened with the judiciary and Iftikhar Chaudhry till he retired — and there are some remnants of this that can be seen in the SC still.”
The power of the judiciary
The movement may not have borne the results that were expected of it by the masses but it did bring certain change. Saleem felt that it made precedence that never existed before. “This movement provided judges the courage to stand against dictatorship, which had no precedence in the history of Pakistan,” he said.
“When have you ever heard of the armed forces being brought into the court? For the missing persons issue in Balochistan this was done, and even orders for FIRs were issued for active officers.”
He also feels that the judiciary gets an unfair share of criticism, and it’s not accidental. “The establishment did not like this happening, and a narrative was developed against the judiciary marking it as a useless force, despite the fact that it’s no longer the same judiciary — this judiciary is no longer sleeping,” he said.
The effect of the movement can verily be felt. “This is the continuation of the lawyers’ movement that the Pakistan Bar Council and other bar councils have moved the Supreme Court (SC) against the establishment of military courts and open arguments are being made and heard against them — which has also never happened before,” Saleem explained.
Ghazi approaches the criticism of the judiciary from another angle. He doesn’t think that change can come overnight and people need to be more patient for it to happen.
“The problem which actually lies at the root of the delays in justice is that there are not enough judges available to hear the cases. So if a judge is burdened with 6000-9000 cases, how do you expect them to perform?” he asked.
The senior lawyer has his own diagnosis of how change will come. “Find suitable candidates and arrange finances, which is difficult — it is being done but it’ll take a lot of time. And once that is done ensure that quality of the judiciary is maintained,” he said.
Rasool feels that the problem has more to do with the attitude of the judiciary.
“The movement turned from being about the rule of law to being about the rule of judges,” he lamented.
“The quintessential critique of governance in Pakistan, and the Musharraf in Pakistan, is that too much power was concentrated in one person and not in an institution — and after the lawyers’ movement the exact thing happened again,” he added.
The revived judiciary started to believe that they don’t draw their power from the constitution, and instead draw their power from the people, Rasool pointed out.
“In fact there were a number of statements made by Iftikhar Chaudhry about the fact that he was brought back through the mandate of the people, and because of the popular movement. When a politician thinks that way it’s alright because a politician is supposed to represent the people; the judiciary is not supposed to represent the people, the judiciary is supposed to represent the command of the constitution even when that command goes against the voice of the people,” he said.
“The judiciary under Iftikhar Chaudhry began to believe that it didn’t need to abide by the constitutional command itself, and that it should go beyond the four corners of law to deliver justice for people. Whatever the constitution said became inconvenient for a while because they could bend, mould and break it to benefit the larger group of people,” he added.
Lawyers running amuck
From tragedies such as Daska to petty issues like beating up a police officer over a glass of water — lawyers have repeatedly made it into the news for taking the law into their own hands.
In terms of Daska, Ghazi pointed out that some criticism isn’t fair. “There are two things, you cannot stop people from holding demonstrations in a democracy. Whenever a community feels that it is being oppressed it can demonstrate. This is not a crime which happened to one person, this was a crime where the president of the bar died — if an ordinary person had died there can’t have been a protest, but if the elected president of a community dies because of the police then it becomes a serious issue,” he said.
However, in terms of all the other instances of lawyers acting like thugs Ghazi isn’t as forgiving. “It is unfortunate that lawyers took the law in their own hands in the protest. What is regrettable is that they manhandled police and burned offices — this is illegal and they should not have done it,” he said.
“I understand that most of the people have a lot of expectations from judiciary and these should be met, and all those lawyers who take the law into their own hands should be punished. Rather, the bar for the lawyers should be set higher than an ordinary person,” he added.
A little training goes a long way and Saleem felt that lawyers needed it the most. “Proper training and coaching for lawyers has failed under the bar councils. The result of this is that there are some bad eggs that are inducted into the judiciary who exploit what we can now see as unity and strength. However, they are small in number considering the total strength of lawyers in the country,” he said.
The 21st amendment has made military courts a part of the constitution, and in effect as a part of the constitution it cannot be questioned
However, the entitled attitudes shown by some lawyers go back to the lawyers’ movement. “One of the worst and most embarrassing legacies of the lawyers’ movement is the ‘wuklagardi’. Before anything else they need to get their hands around this and stop it somehow. The lawyers’ movement created a genie in a bottle when they said lawyers need to come out onto the streets and fight with the police, the media and people,” he said.
“The entire nation came together and watched them do this for three years and then patted them on the back saying you’re doing great work against the military and the dictatorship.”
After the judiciary was restored, while the leaders and senior lawyers went back to work, junior lawyers from district courts remained unsettled. “The power that was given to them once as the legitimate way to express their grievances, that genie that came out of the bottle was never put back,” Rasool explained.
“It is the absolute responsibility of the senior members of the bar and bench to figure out a way to ensure that these lawyers go back to practising the law instead of violating it,” he added.
What of the military courts?
The SC is currently chasing the military courts down and trying to desperately undo their implementation. Most if not all lawyers view the courts with great vehemence and would not mind them coming undone.
“I think the SC is in an extremely tough position. The enactment came after the APS Peshawar massacre, through probably the largest mandate that the nation has ever had — such a consensus has never been witnessed before this,” Rasool said pointing out that the military courts most likely aren’t going anywhere.
“Every law in Pakistan can be struck down on the basis of the fact that it’s unconstitutional. But no provision of the constitution can be considered unconstitutional — because what would be the touchstone on which you would say that it’s invalid? What’s above the constitution?” he said.
The 21st amendment has made military courts a part of the constitution, and in effect as a part of the constitution it cannot be questioned.
“Now if the SC thinks that the courts are a bad idea — as most lawyers including myself do because we need to strengthen our existing courts — then the question is that if the entire people come together and say that there shall be military courts then how can a provision of the constitution be declared unconstitutional?” he asked.
“In my opinion the supreme court cannot do that far. They will say that it is abhorrent and terrible, however, because it is written into the constitution we have no power to strike it down, and we wish the parliament will reconsider its decision and take it out of the constitution,” he said resolutely.
The judiciary was brought back to life after great struggle and to show for it the country has had little action and several headlines. Emphasis needs to be made on the practical instead of the PR for real, tangible change to come through.