SC’s business is producing jurisprudence
The judiciary has been a prominent feature in prime time news for some time now. It’s not like the old Ch Iftikhar days, of course, with its suo motu rampage, hounding the corridors of power, and judicial activism. Now it’s about election fraud, and PTI’s accusations that senior judges, including Chaudhry sb, remote controlled the ’13 general election through returning officers to PML-N’s benefit. Then there was the judicial commission, which exonerated the N-league, and therefore the judges in question, even though it created fresh debate about the judiciary’s credentials for such investigations.
And, of course, there is the 21st amendment. The military courts never sat well with the judges and lawyers. They had built too much muscle since the days of the lawyers movement to allow a parallel legal system, no matter how controlled. But, surprisingly, the Supreme Court still ended up green-lighting military courts, setting an important precedent and once again raising a host of questions.
DNA talked to prominent lawyer Ahmer Bilal Soofi to work through this legal labyrinth. He is among the more respected of Pakistan’s leading lawyers and surprisingly unstained for someone who has held political office. Twice he was caretaker federal minister for law, justice and parliamentary affairs and human rights; first when Shaukat Aziz’s administration folded ahead of the election and second in ’13.
Among other achievements, he has been elected as member advisory committee to the United Nations Human Rights Council in Geneva and serves on the panel of OIC’s eminent persons.
The government has often sought him for legal advice precisely because of his expertise in High Courts and Supreme Court litigation. And it is this insight that we wished to draw on to understand today’s Supreme Court.
How deep did the matter of the 21st amendment really go? Why first the sudden rush to challenge it, and then the slow realisation that military courts were necessary? And why continuing dissent within the community?
How deep did the matter of the 21st amendment really go? Why first the sudden rush to challenge it, and then the slow realisation that military courts were necessary? And why continuing dissent within the community?
“This type of dissent actually strengthens the judiciary”, he quickly said.
Such decisions cannot be understood just in terms of black and white, he explained, and it is important to understand why.
“The Supreme Court’s job is to produce jurisprudence on fine legal points”, he said. “And there were two important legal points demanding its attention for a long time”.
These were the basic structure theory issue and the legal treatment of law enforcement/military action in Pakistan.
The former relates to constitutional provisions that mandate a parliamentary form of government. And since military courts would create a parallel justice delivery system, undermining basic tenets of parliamentary democracy, much of the legal fraternity argued in favour, privately, of the Court’s jurisdiction to challenge such amendments to the constitutions.
More creativity
The 11-6 decision that ultimately threw out challenging petitions also took the institution into unchartered waters.
“The Court had not given a clear pronouncement on either of these issues before, which is why it gave them considerable time and space when they were finally taken up”, he added.
“And it’s important to understand the divisions it has created. It should be viewed more in terms of a legal debate”.
The minority that disagreed presented hard and potent facts of its own, which must also be incorporated in the larger debate. This contributes to the evolutionary nature of jurisprudence, where “today’s minor issues can become tomorrow’s major issues”.
“This is increased the space for creative thinking; there is evidence of more creativity”, he wanted to stress.
It is also important to understand that the Court must look at two sides of judgments; short term and long term implications.
In the case of the 21st amendment, the immediate impact is military courts and the so-called parallel legal system, but the long term impact revolves around the legal treatment of conflict in Pakistan.
“Also, the Supreme Court has offered a very innovative interpretation of Article-245”, he said.
“There are three conditions for military intervention: one, in face of external aggression; two, when called for aid of civil authority; and three, in case of internal threat of war. This is very innovative”.
It is this feature – war by non-state actors – that explains the ‘evolving’ nature of the threat as well. And this unique challenge has opened a legal window where the military can operate without disrupting, in the long run, the basic structure theory.
It is this feature – war by non-state actors – that explains the ‘evolving’ nature of the threat as well. And this unique challenge has opened a legal window where the military can operate without disrupting, in the long run, the basic structure theory
Other problems
But the judiciary has far more serious issues to attend to. The institution as a whole, despite its prominence of recent years, is in decline. The situation has become so bad, in fact, that the government has problems finding competent lawyers to argue its international cases.
“That’s true, there is a crisis of legal expertise in the country”, he explained. “Experience and expertise in international law, especially, is very low”.
He has been advocating greater awareness about these shortcomings, and ways of overcoming them, for a long time; both in and out of government.
“I have always strongly advocated all important ministries to have well-trained international lawyers”, he said. “The government should encourage and incentivise progress in international law, water law, boundary disputes, UN working and mineral laws very seriously if it wants to improve its position internationally”.
Yet that, too, is not all. In the years since the lawyers movement the judiciary has accomplished many feats, but somehow it never turned its attention to improving justice delivery to the common man. Initially many social society organisations, left-leaning groups and spirited individuals rallied behind Ch Iftikhar because of the belief that attention might finally turn to the mountain of backlog – that hides a sea of corruption – in the legal system.
But that was not to be.
“The management aspect of the judiciary is a complete failure” he said, reflecting on the present state of affairs. It is just not fair, he agreed, that even the simplest cases take forever to be decided. Unlike much of the world, there have not been many sincere efforts to overcome this shortcoming in Pakistan.
“We have some very competent judges, but the judiciary just cannot manage itself”, he said.
And this is the most central of the judiciary’s problems; hence its tainted image generally. “Maybe they should mandate management lessons for the senior judiciary as well”, he concluded on a lighter note.
Personally I know him. He is so popular in his area. By the way, the interview is really awesome to me. Love it. Thank you so much.
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