Feisal Naqvi

Lawyers’ movement in retrospect

In Uncategorized on January 2, 2009 at 5:47 am

The Year 2008 is out. Can that also be said about the lawyers’ movement?

From one perspective, the lawyers’ movement marks a watershed in Pakistan’s history. Lest we forget, March 9, 2007 was not the first time a Pakistani ruler tried to get rid of an inconvenient chief justice. Musharraf himself disposed of Chief Justice Saeeduzzaman Siddiqui through his 2001 PCO while those with short memories would do well to remember the farcical events of 1997 when the PMLN goons chased Chief Justice Sajjad Ali Shah out of his courtroom, subsequently to be displaced through a controversial decision.

But July 20, 2007 was the first time that a united judiciary took a stance in favour of its independence. Moreover, the Supreme Court’s decision had only come about as a result of the brilliant political strategy adopted by Aitzaz Ahsan to take the Chief Justice’s case out of the courtroom and into the streets, creating for the first time, a mass movement in favour of the independence of the judiciary. That movement, in turn, created the political space for the Supreme Court to reject the attempted ouster of its Chief Justice.

So, in one go, the lawyers’ movement seemed to create not just a truly independent judiciary but also an enlightened and alert electorate, anxious to protect its civil liberties from being taken away.

Now look at events from the perspective of the cynic.

Almost 18 months after the famous decision of July 20, 2007, the once-vaunted forces of civil society have retreated to their customary apathy. The promised restoration of “all judges” has become a long-running farce which is not believed by anybody. The once united lawyers’ movement has splintered into various groups, with at least one large segment having decided that discretion is the better part of valour and the PPP cohorts having decided to accept senior positions with the government.

As for the activist component of the lawyers’ movement, the only activity which has occurred in recent weeks has been the cutting – amid considerable pomp – of a cake to celebrate the birthday of Iftikhar Muhammad Chaudhry. Most of the other judges who had earlier taken a stand for principle have reluctantly – and understandably – returned to duty rather than face a dreary life of exile from the bench. Even the declaration of emergency on November 3, 2007 has yet to be set aside.

So far as the independence of the judiciary is concerned, the less said the better. One newspaper recently broke a series of stories in which it was alleged, in graphic detail, that the daughter of Chief Justice Dogar had been illegally admitted to medical school and, perhaps more importantly, that Justice Dogar had “pathetically” begged [the reporter] not to print the story.

Tellingly, no contempt proceedings have been initiated against the newspaper but stories have instead emerged of the reporter receiving death threats. The honour of the judiciary was also not burnished when a learned bench of the Islamabad High Court purported to stay the investigation being carried out by the parliamentary committee looking into the matter. Instead, the stay order resulted in a near-unanimous revolt by parliamentarians of all stripes and the Supreme Court subsequently had to vacate the stay order while the matter was attempted – so far unsuccessfully – to be discreetly hushed up.

Given these divergent – and perhaps equally justified – viewpoints, how is one to come up with a consensus view? Does the judgment of July 20, 2007 represent a high-water mark of judicial activism or does it represent the beginning of a new era? Will the events of October 2007 and the challenge to General Musharraf’s candidature be seen as a cautionary tale or as an heroic epic?

The short answer is that no one knows. We are currently in the middle of a three-act drama in which the first two acts have played themselves out but the denouement has yet to come. Having said that, the lawyers’ movement has lessons for both the judiciary and the establishment.

The primary lesson for the establishment is that independence of the judiciary is now an unassailable public virtue. Note, this does not mean that the independence of the judiciary must be established in actual fact. To that extent, business can continue as usual. Instead, what it does mean is that the independence of the judiciary has entered the pantheon of political virtues which must be publicly respected, just like patriotism and financial rectitude, and that failure to provide sufficient respect will result in an adverse public reaction.

And while that may not be a particularly severe constraint on the powers of the judiciary, there are still limits which it would be inadvisable to breach. For example, several newspapers have carried stories to the effect that one of the most junior judges of the Sindh High Court is likely to be made the chief justice of the province as a consequence of his friendship with the President. There is no way to tell if such reports are correct but it would be a singularly unwise step for the PPP to take: such a gross infraction of accepted norms would only give fresh impetus to an otherwise defunct lawyers’ movement.

On the other hand, the lesson staring the lawyer’s movement in the face is that there are limits to what any judiciary – no matter how independent – can achieve. It has become an established pattern in Pakistan that a judiciary embarrassed by its earlier acquiescence before an illegal power grab tries to atone for its sins by taking up the mantle of populism. The problem with such efforts is that they plunge the judiciary into areas which it often knows little about. An occasional foray into such areas can be carried off: repeated expeditions into unforgiving territory, however, tend not to be successful.

The appropriate model for the judiciary now is the period during which Mr Justice Ajmal Mian was the Chief Justice (1997-1999). He took over as Chief Justice after the removal of Sajjad Ali Shah in extremely dubious circumstances and with the prestige of the judiciary at a marked low. His tenure was not marked by any overt conflict with the executive and yet it was also marked by a firm stance against executive excess, the most notable examples being the Mehram Ali case (in which military courts were struck down) and the Farooq Leghari case (in which the declaration of emergency by Mian Nawaz Sharif was held justiciable and the suspension of fundamental rights was overruled).

Zhou Enlai, the great Chinese leader was once asked his opinion of the French Revolution. His pithy response was that it was too early to tell. Much the same applies to the lawyers’ movement.

This column first appeared in The Friday Times issue of January 1, 2009

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