Judiciary in Pakistan: A movement wasted

A movement wasted
By Kunwar Idris
Sunday, 04 Oct, 2009 (Dawn)
Mysteriously silent is Aitzaz Ahsan, who led processions from one end of the country to the other swaying the lawyers with the rhythm of his poetic chants. It seems he now only has his losses to calculate. — Photo by AFP

The lawyers’ movement has given no relief to the people seeking redress, nor has it made the procedure for the appointment of judges any fairer.

This is not just the viewpoint of a sceptical columnist who has felt all along that neither would come about by agitating on the streets.

It is Ali Ahmed Kurd, the lawyer who charmed the rabble and elite alike with his histrionics, now saying mournfully that pharaohs sit in courtrooms while brokers sit at the doors. An expression of collective discontent of the lawyers on the selection of new judges and the recall of old ones came in the boycott of their oath-taking ceremony by the Karachi bar, led by Rasheed Razvi, once himself a judge and a supporter of the movement.

Mysteriously silent is Aitzaz Ahsan, who led processions from one end of the country to the other swaying the lawyers with the rhythm of his poetic chants. It seems he now only has his losses to calculate.

Also silent is Justice Iftikhar Mohammad Chaudhry’s spokesman Athar Minallah who, his passion spent, now broods over it all sitting somewhere else. Both Ahsan and Minallah may be quiet, but I suspect they are no less disillusioned than Kurd and Razvi.

The lawyers in the movement were so carried away by the prospect of humbling a haughty president that they forget that the judiciary could become neither independent nor more responsible only by the reinstatement of a chief justice — howsoever unjustly removed or harshly treated. Institutions are built by slogging over centuries and not by one quick march. The lawyers succeeded in their immediate aim but their campaign has made the judiciary more vulnerable to extraneous pressures than before.

Justice Iftikhar Chaudhry, addressing the lawyers at Jamshoro soon after his reinstatement, spoke of the disposal of every case within six months. The reinstated chief justice of the Lahore High Court, Khawaja Sharif, similarly told the Sheikhupura bar that every ‘reptile’ would be tamed once the biggest among them, meaning Pervez Musharraf, was hauled up. Musharraf is not there now as an obstacle but Justice Sharif can hardly claim that the disposal of cases has become fairer and more expeditious since his departure. This writer has been following the proceedings of two pending cases, one in the high court and the other in a subordinate court. Neither has matured for a meaningful hearing in two years. The assurances of judges have come to mean no better than the promises of politicians.

The chief justice has also been showing anxiety over the conduct and integrity of the judges being called into question. Surely he now realises that the fact of who took oath, when and who administered it was not enough to acclaim or condemn a judge. The legal profession and the people need more demonstrable evidence. The best, though not conclusive, would be their reputation, lifestyle and wealth.

Repeated pleas made to the heads of state and government and the ministers to declare their assets have had no effect. Resultantly, it is left to conjecture or disclosure. Pakistan’s ever sinking rank in the world corruption table demands that the worst culprits among the offending public servants should be identified. The judges of the superior courts, who are expected to be the least tainted of all, could set the precedent by declaring their assets on joining office and later as well. Sadly, they do not seem to be so inclined.

India’s supreme court set an example by advising the judges to put their assets on the website of the court. But it is voluntary. A judge may refuse to do so as some indeed have.

Justice Chaudhry has only plaudits to earn if he were to make it compulsory. In fact he should go a step further and establish a forum where the public and litigants could air their grievances of delay or discrimination. At present they don’t know where to go and run the risk of contempt if they complain too loudly. The propriety of the conduct of judges must not be left to rumours or reports in the media. It should be open to public scrutiny.

The current discourses of the chief justice are all about the superior courts. The concern of the people, on the other hand, is more about delays and corruption in the lower courts. In fact the first and often the last court, so to say, for the common man is the police station. The delay and denial of justice at lower levels is widespread because the work is too much, even for prompt judges to handle.

The thrust of the chief justice’s drive, therefore, should be towards the creation of informal citizens’ courts. It is all too well known that getting involved in the institutional machinery of the state implies harassment and extortion. Courts are no exception and even the chief justice can do nothing about it.

In England most criminal cases and civil disputes — as many as nine out of 10 — are decided by justices of the peace who are all unpaid but respectable citizens. Pakistan’s local government laws, too, contemplate conciliation courts but hardly any were established, and litigants wouldn’t trust them either in a political environment even if they had been set up. Under a judicial umbrella they would. It would be good use of the funds and expertise provided by the Asian Development Bank’s Access to Justice Programme.

Howsoever carefully chosen and well-paid, the judges of superior courts can advance the cause of justice only if they are role models for all public servants. The other day, Chief Justice Chaudhry distributed official cars among the civil judges of Karachi and promised them better pay as well.

It makes me recall a scene from my student days in Lahore when Justice Masud Ahmad came to the high court riding a bicycle and other judges came driving their own cars — particularly striking among them was Pakistan’s then chief justice, A.R. Cornelius, who came in his sports coupe. Times and the judges have since changed, but not the hard reality that justice doesn’t flow from pay and protocol.




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