The writer is associate professor of law & policy at LUMS. He holds a doctorate in law from Harvard Law School
Beware if someone seizes every opportunity to remind you of his or her sacrifices for the Supreme Court. Be on your guard if they equate the apex Court with an individual or individuals. And, be very suspicious if they pledge undying fealty to persons rather than the institution. Such ‘janisaars’ are often anything but that, for they would be very unlikely to risk their lives for a principle or a cause. They may, however, contemplate threatening yours if you take issue with their self-aggrandisement.
I am greatly amused when I come across these self-styled ‘janisaars’— lawyers, TV anchors, civil society-wallahs — as their bums rested comfortably on the fence during the heady days of the ‘Lawyers’ Movement’. While occasionally mumbling encouragement to the marching protesters, they did not quite let go of the romance of the uniform. Or perhaps, they were hedging their bets. Yet, more often than not, they constitute the self-professed ‘fidayeen’, who now serve another kind of hegemony — one that seeks to resist and curb any reasoned and well-intentioned critique of judicial policy and output, even if it entails abuse and force. Their misplaced, and often disingenuous zeal, is unsurprising. After all, carpetbaggers as they were, they can neither understand nor relate to the motivations that persuaded so many of us to choose to serve the Movement in our humble ways. Musharraf was to us, and shall always remain — regardless of his pseudo-legal legitimisation by the Supreme Court of the time, which is an embarrassing but undeniable historical fact — an usurper and an autocrat. When he sent 60-odd judges packing unceremoniously, the choice for any Constitution-abiding democratic citizen was obvious. At stake were not the continued employment and retirement benefits of the ousted judges, but the fundamental edifice and integral framework of our constitutional ethos. We confronted a rapid slide from a struggling democratic polity to the plight of another utterly lawless Somalia. Thus, we decided to temporarily overlook the dark chapters of our history — our many judicially condoned constitutional abrogations and unholy PCOs; the pathetic experiences of ordinary litigants in our district courts; and, the colonial modes and frequent inequitable dispensations of our legal adjudication process — and stepped up to face the wrath of the General. This was to us, a movement against Musharraf, and what he stood for. This was also to us, a movement for the Supreme Court, and what it ought to stand for. To the extent that the chief justice represented the Supreme Court and what it ought to stand up for, it was also a movement to restore him and his illegally ousted brother judges of the various appellate courts.
As the Movement evolved and the media houses stepped in — at least some of them in order to cash in on the highly camera worthy spectacle, and then, sensing the awakening public conscience, to profess ad nauseam, their commitment to all things democratic — a gradual transformation took place. Individuals were elevated and made larger than the collective movement; personalities were made to overshadow the underlying principles. In consequence, this photoshopping at a massive scale, turned an iconic symbol of the Movement into its Lord and Master. Fairly soon, this relentless aggrandisement and uninterrupted eulogisation turned a mortal into a messiah. The ‘janisaars’ treated, or pretended to deem, his every syllable as sacred. As it is, some of us have a penchant for the lone crusader and the uniformed knight who shall solve all our problems. As if the honourable chief justice and his brothers were already not faced with the tremendous challenges of restoring the image of the judiciary, of sundering all links with any past judicial follies, and of extending justice to the meekest and the most exploited, they were now expected to listen to the whims of this coterie of ‘janisaars’. In their rhetoric, they are nothing short of latter-day Ottoman-style janissaries who protect the throne of the law and its incumbent.
As for the rest of us — despite the tear-gas, the brick-bats, the false FIRs, the police persecution and the suffocating prison cells that were the lot of many — we started arriving at the realisation that these janissaries were perhaps, the single biggest impediment to the cause of justice. For we were witness to how they could attempt to nefariously detract the honourable Court from rigorously and independently deciding which cases were worthy of its precious time and which were not. Where, if at all, were the special mechanisms of Article 184 (3) and suo motu jurisdiction to be invoked. Where such modes were to be abstained from in view of the doctrines of political question and separation of powers and/or the fact that no question of public importance and violation of fundamental right(s) were at issue. And, finally, where a judicial intervention would further the cause of the disempowered and the exploited rather than bolster the parochial agendas of the empowered or the personal battles of the elite.
A country’s appellate courts cannot entertain and maintain any special constituents or a cadre of loyalists who are more ‘equal than others’. An ‘independent’ court ought not to allow talk show circuses, media trials or a mob of shouting black coats to in any way influence its judgment. And I have faith that our worthy Lordships are firmly resolved not to be swayed by the same. The law, after all, is expected to operate within the paradigms of the principles of equity and justice, established legal doctrine, court precedents and carefully considered public policy. That is what the Lordships are anointed to uphold and promote.
But if at all a constituency is necessary in these turbulent times — when institutions are in the process of rebuilding and may require all the support they can muster — then my Lords, do acknowledge your real constituents. For there are many still willing to march again if any military or political adventurer or his henchmen set out to undermine or destabilise the Supreme Court. Your real constituents are the thousands upon thousands of disempowered citizens, who look to you to exercise your special powers ‘only’ and ‘exclusively’ for the benefit of the weak and the wronged. Your real constituents are the thousands of invisible participants in the ‘Lawyers’ Movement’ who ask of you to build a robust, efficient and equitable system of justice for the common man. Your real constituents are the hundreds upon hundreds of able, qualified, and informed constitutional and political commentators who engage in a candid and vibrant democratic and constitutional debate. While they unequivocally attach great primacy and respect to the noble institution of the judiciary, they also boldly and sincerely point out where, in their humble view, justice is not being done or being seen to be done.
All these, my Lords are your true constituents. And they are easily recognisable. For they don’t perpetually extol and market their services to the Lawyers’ Movement; they don’t claim entitlement to any individual attention or special treatment; and, above all, they seek justice for all and not just for themselves.
Published in The Express Tribune, July 30th, 2012.