Feisal Naqvi

Now comes the hard part

In Uncategorized on March 20, 2009 at 2:04 am

As the dust settles gently over the euphoric end to the black-coat movement, some hard questions remain to be asked. First, why did this happen and what does it portend for the politics of this country; second, what does this mean for the judicial system?

To begin with the first question, honest analysis has to conclude that the determining factor behind the success of the movement was not the sudden embrace of the rule of law by the people of Pakistan. Yes, the lawyers’ movement succeeded brilliantly in raising public consciousness regarding the issue of judicial independence. But by themselves, the lawyers had faltered. What made the movement succeed in effect was the embrace of the Long March by the PMLN and, most importantly, the role of the media.

To clarify, our public has for centuries lived in a unipolar world, in which all power flowed from the central locus of the state, be it the emperors of Delhi, the British colonists or the rulers of Islamabad. Different forces of the state – such as the bureaucracy or the army – have from time to time remained ascendant but power remained centralised at all times. Today’s media is the first truly independent source of power to emerge in Pakistan. General Musharraf tried to subjugate the media but failed. Now President Zardari has followed in his footsteps.

However, quibbling over the root cause of Sunday’s events is not entirely relevant. So far as the people are concerned, they took to the street to march against an unpopular government and in favour of an ideal. And they succeeded.

That romantic view of events will now become received wisdom and the next time round, the people will require far less instigation – either by the lawyer community or by the media – to rise up in favour of an independent judiciary. The question which then needs to be asked is: can the judiciary deliver?

There are two answers to that question, because that question can in turn be understood in two different ways.

If by asking “can the judiciary deliver” we want to know whether the judiciary can usher in a new era of transparent and competent government, the short answer is no. There is a division between the realms of policy and principle and while occasional forays across the dividing line are inevitable, it is neither desirable nor practical for the judiciary to take too much responsibility on its shoulders.

Not only is the judiciary ill-equipped to make policy decisions but efforts to intrude into the realm of other branches of state tend not to be well received by those other branches. This also does not require the judiciary to become a cipher. The tenure of Mr Justice Ajmal Mian as the Chief Justice of Pakistan, for example, saw a number of very important “political” cases being decided, including cases dealing with military courts and the legality of the emergency declared in May 1998. However, that court was never seriously accused of “interfering” in the prerogatives of other branches of state.

And with great respect, one would submit that the tenure as chief justice of Mr Justice Ajmal Mian would be a good model for the Supreme Court to emulate.

On the other hand, if the question means whether the restoration of Chief Justice Iftikhar Chaudhry will usher in a new era of cheap and speedy justice, the short answer to this question is also no.

Even from a best-case perspective, what the lawyers and the media have successfully managed to achieve is a return to the status quo ante, that is, a return to the judiciary of November 2, 2007. That judiciary may have been independent, but in terms of dealing with the problems of the public, it left much to be desired.

If one visualises the judicial system as a system designed to process and resolve disputes, the point which emerges is that it suffers from two kinds of problems: “personnel” and “structural”.

The “personnel” problem relates to the quality of the men and women serving as judges in Pakistan. That problem is now likely to be mitigated for two reasons. First, it had finally struck home to many people that the judiciary – both subordinate and superior – needs to be staffed with the best that Pakistan has to offer in the way of legal talent. The Shahbaz Sharif government had already tripled the salaries of the lower judiciary and hopefully other provinces will follow suit.

Second, the restoration of Iftikhar Muhammad Chaudhry to the position of CJP not only makes it more likely that appropriately qualified people will be asked to serve as judges but also that that they will agree to serve. Prior to his restoration, many qualified candidates refused to be considered because they did not want to join a tainted institution. That excuse is certainly no longer valid.

Unfortunately, fixing the “personnel” problem is not enough to fix the judicial system. This is because the fundamental problem with our legal system is that it is structured in such a way as to both invite and reward frivolous lawsuits. The result is a massive torrent of litigation before which even the most capable of judges are helpless. If the delays endemic to the legal system are to be fixed, no significant progress will be made until the underlying regulatory systems, particularly those dealing with immoveable property, are radically overhauled.

All of this, however, should not be taken to mean that the restoration of Chief Justice Chaudhry was mere sound and fury, signifying nothing. The independence of the judiciary now not only stands established as a core public virtue but it is one which the public itself feels obliged to defend. The fact that the media has now arrogated to itself the role of protecting judicial independence means that attempts to sabotage the judiciary are less likely to succeed.

The fact that the judiciary is now led by a man who is indisputably independent hopefully means that our leaders will feel less inclined to pull obnoxiously illegal stunts (such as the promulgation of Governor’s Rule). And finally, the restoration of the chief justice has given new hope to the citizens of Pakistan. Those may well be intangible gains but they are crucial nonetheless.

This article was published in The Friday Times on 20 March 2009.


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