Feisal Naqvi

No, he can’t

In Uncategorized on December 7, 2010 at 5:08 am

Some weeks ago, the cover of Newsweek featured a giant portrait of Chief Justice Iftikhar Muhammad Chaudhry along with the question, “Can Chaudhry save Pakistan?”

My view is no: no judge can save Pakistan, not even the current chief justice.

The only way the current chief justice could save Pakistan would be if the absence of a good chief justice was the reason why Pakistan is in its current dire straits. That is not true: Pakistan is in a mess despite the fact that it has a good chief justice, not because it lacks a good chief justice. What then did the Newsweek cover mean?

Part of the confusion stems from the fact that there was little connection between the question on the cover and the article inside. What the article says is that Pakistan needs the rule of law and that many people support the Taliban because they offer speedier justice than Pakistan’s sclerotic system. Both statements are correct. But neither one justifies the conclusion that the current chief justice of Pakistan, or any judge for that matter, can establish either the rule of law in Pakistan or comprehensively reform the legal system so that it provides justice within one’s lifetime.

The hidden assumption in the Newsweek headline is that Pakistan’s shortcomings are due to a failure of personality. In other words, the argument being put forward is that “if only X was in charge, Pakistan would be fixed.” Seductive as this argument is – see, e.g., the legions of army commanders enchanted by it – the truth is considerably different.

Pakistan’s problems are not problems of personality. Pakistan’s problems are problems of policy. Some of these policy problems require legislative answers and some of them require executive answers. But very few of them can be magically fixed simply by replacing the man at the top. More importantly, those few problems which can be fixed through executive intervention cannot be fixed by the judiciary.

Let me be more precise. The judiciary cannot establish the rule of law in Pakistan and it is a fool’s errand to believe that it can. The rule of law is a social phenomenon, one which encompasses everybody from the highest to the lowest. As per H L A Hart, law exists when people internalise the demands of a particular legal order and follow them. Thus the application of sanctions – for example, through the public punishment of law-breakers – does not demonstrate the existence of law but instead indicates the failure of law. The judiciary can at best demonstrate the existence of the rule of law and it can protect the legal order from attacks on it. But it cannot create that order. Only we, the citizens, can ultimately create that.

But what about the provision of justice? How, you might ask, can anyone deny that is the job of the judiciary to provide justice?

Agreed, but once again, the judiciary by itself cannot provide justice. To begin with, the judiciary is but one part of the system of justice. In terms of criminal law, much of the heavy lifting is done by the police and other state agencies. It is the police which registers FIRs. It is the police which investigates complaints. It is the police which prepares challans. It is the police which along with the public prosecutor bears responsibility for the progress of criminal cases. The judiciary is there, of course, but for the vast majority of citizens, the resolution of criminal law issues means dealing with the police apparatus, not with judges.

In terms of civil disputes, the role of the judiciary is different. In theory, the judiciary can ensure that civil disputes are expeditiously decided. In practice, at least in the case of Pakistan, the volume of cases is simply too much. Think of the judiciary as a traffic policeman. Up to a certain point, a traffic policeman can help the flow of traffic. But if there are fifteen lanes of traffic all trying to pass through one lane, the traffic policeman can wave his arms all he likes, those fifteen lanes are still going to take their sweet time.

The point, in short, is that the judiciary cannot work miracles and that we should stop requesting it to do so. What the “judicial revolution” fixed – hopefully – was the tendency of their Lordships to bend a knee before rampant generals. All other problems remain as before and we do ourselves no favours by assuming that they will mysteriously disappear now that our judges have discovered the virtues of independence. Fixing those problems still requires legislative will and executive effort: fairy dust is in short supply.

Let me finish this rant by quoting what the great American justice, Judge Learned Hand, had to say on the matter:

“I often wonder whether we do not rest our hopes too much upon constitutions, upon laws and upon courts. These are false hopes; believe me, these are false hopes. Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can even do much to help it. While it lies there it needs no constitution, no law, no court to save it.”

Amen.

This column appeared first in the daily Pakistan Today on 7 December 2010

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  1. Feisal sahib, an excellent article with an extra-ordinary ending. Good to see your pieces more often now, as opposed to total absence in the past. Best Wishes.

  2. Thanks. That one quote is probably my favourite piece of legal wisdom and I have to make sure I don’t use it too often:)

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