Feisal Naqvi

Archive for December, 2015|Monthly archive page

Physician, heal thyself

In Uncategorized on December 6, 2015 at 4:37 am

When my learned senior, Chaudhry Aitzaz Ahsan, was rallying the people of Pakistan to join what would become known as the ‘Judicial Revolution’, he promised them the sun, the moon and the stars. An independent judiciary would bring true democracy to Pakistan, he argued. It would unite the country. It would protect the powerless and liberate the oppressed. It would be the best thing since sliced bread.

More than eight years later, the Promised Land has yet to arrive. The poor are still poor. The weak are still weak. And the corrupt are still corrupt. What then did we gain?

Let me concede first that it is unfair to judge the judiciary for not fixing all of our problems. Let us therefore focus only on the state of justice in this country. After all, if there is one thing for which that the judiciary can actually be held responsible, it is the manner and extent to which justice is provided.

Unfortunately for their Lordships, the situation there is bleak. The ordinary man is as far from having access to swift and inexpensive justice as he was a decade ago.

Look at the facts. The judiciary appoints itself. The judiciary polices itself. If there is money that the judiciary demands but doesn’t receive, I have yet to hear of it. If there is a judicial vision for legal reform which is being thwarted by uncaring bureaucrats, I have yet to see it. There is a Law and Justice Commission of Pakistan. There is a National Judicial Policymaking Committee. Damned if I know what any of them do.

In theory, the judiciary is there only to implement the laws, not to make them. But we jumped off that bridge many years ago. The sermons may not be delivered quite as frequently now from Constitution Avenue as in the glory days of Iftikhar Muhammad Chaudhry. But they have yet to stop.

Let me be very clear: I have no quarrel with individual judges. I think every lawyer who gives up his (or her) practice for the bench is a hero. I know that judges work absurdly long hours with absurdly little support. I know that judges are confronted day in, day out by a parade of thin-skinned but badly prepared lawyers. And I have always argued that we should pay our judges much, much more.

My problem is that the judiciary – as an institution, as a coordinate branch of government – seems to be doing very little to improve the judicial system. And I repeat, the ‘judicial system’ is just that – a ‘system’: it is more than a bunch of overworked former lawyers.

That ‘system’ needs to be managed. It needs to be analysed. Above all, it needs to be improved in a coherent and holistic manner.

Imagine a grossly obese person with heart problems, joint problems and diabetes. Any doctor can treat each of those problems separately. But a good doctor will also sit down that person and tell them to lose weight. The first approach is limited. The second approach is systemic.

What our judiciary does today is concentrate heroically on solving each problem as if it existed in isolation of the others. That is hardly the solution. Yes, people have been killing each other ever since Cain and Abel. But people are also killing each other in Pakistan because our laws make it easy to get away with murder.

Even if we assume that legislative changes are not the judiciary’s province, there is much that can be done. To take a simple example, judicial time is an incredibly precious resource which is largely wasted. Spend a day in any courtroom and what you will see most often are lawyers walking to the rostrum and asking for adjournments. Instead of arguments, judges spend their days listening to one side complain about the absence of the other.

The frustrating thing about this situation is that not only are both the problem and the solution obvious but that nothing gets done. A few months ago the Lahore High Court adopted the Sindh practice of having division benches (of two judges) sit for the whole day, rather than wander back and forth between single and DB. The practice was widely hailed by lawyers, visibly effective in reducing delays and mysteriously abandoned. Go figure.

Twenty years ago, the Supreme Court would circulate a ‘proposed list’ to all lawyers two weeks before the actual date of fixation so that lawyers could adjust the dates to suit themselves. At some point, the proposed list was abandoned. And it has stayed abandoned, despite repeated demands from the Supreme Court bar for the reinstatement of the proposed list system.

On the other hand, there is one particular benefit of the judicial revolution that needs to be acknowledged: our judiciary today has a public credibility, a capacity to make definitive pronouncements on matters of public import, which it has never enjoyed before.

Take, for example, the case of Mumtaz Qadri. Qadri has never denied that he killed former governor Salmaan Taseer. His only defence was that he killed in the name of a higher cause.

In the beginning, very few stood up for the late Salmaan Taseer and even fewer for rule of law. Qadri’s conviction by an anti-terrorist court was followed by much howling and gnashing of teeth on all television channels, not just the less reputable ones. His appeal before the high court was argued by two former judges. And the decision of the Islamabad High Court itself, with its tortured reasoning, seemed to be the product of a conflicted soul.

None of this confusion was apparent in the Supreme Court. Instead, the three-member bench led by Justice Asif Saeed Khosa gave a clarion call in favour of rule of law and against vigilantism. Qadri had no case, the court held. More importantly, the court declared that it had no option but to decide the case “in accordance with the law of the land as it exists and not in accordance with the law as it should be.” In other words, the court discarded all arguments based on individual religious beliefs and instead stated firmly and boldly that it would rely only on statutory law.

The Qadri judgement is important and praiseworthy for its clarity and its courage. But what makes it remarkable is the way it has been received by society. At least at one level, the debate as to whether or not vigilante killings of alleged blasphemers can be justified is now over.

Let me clarify: I am not suggesting that all of Pakistan is convinced of the merits of the Qadri judgement. What I am saying is that prior to the judgement, it was considered acceptable to equivocate as to whether or not Mumtaz Qadri deserved punishment. Thanks to the Supreme Court’s intervention, any such equivocation is now considerably less acceptable in terms of the public discourse.

This is a big deal. At the end of the day, the legitimacy of every single elected official rests on his fidelity to the constitution. Because it is the judiciary which ensures compliance with the constitution, public recognition of its independence is integral to the legitimacy of the entire democratic system. In simple terms, people accept their democratic rulers as legitimate because they believe that the judiciary would stop anything illegal.

Our judiciary has never before enjoyed this level of social trust. Today, even if people disagree with its pronouncements, they do not challenge its integrity. This development, by itself, is enough to justify everything that was ever said or done in the name of the Judicial Revolution.

This column was published in The News on 6 December 2015.