Legal eye: Minds wide shut

There is no justification for what lawyers did in Lahore this week. There are no principles at play here. It is hooliganism in stark form. We’ll get to the question of how we got here in a minute, which is where both bar and bench are at fault. But on this incident in isolation there are no two sides to blame. That many in our profession stand in support of fellow lawyers demanding that their sense of entitlement to be above the law be vindicated shows complete collapse of the distinction between right and wrong amongst professed purveyors of rule of law.

What happened in Lahore is an exposition of what ails Pakistan, not just the legal fraternity. We are partisan and tribal as a people. Our sense of loyalty is identity based. Our commitment to rule of law continues as long as the law doesn’t bind us. We are eager to instil reform in everyone but ourselves. We will speak of principles so long as abiding by them is not inconvenient. There is no space for debate and dissent. You are either with us unconditionally or against us. In this all or nothing culture taking issue-based positions is not an option.

If you are a lawyer, you must support your fellow lawyer. If you are a judge, you must defend the brother judge. If you don’t, you are a traitor to the cause. And what is the cause? It is to stand by the group without consideration of right and wrong. And, further, that no one should rock the boat by introducing irresponsible ideas such as self-accountability or introspection. Within the legal fraternity (judges included) there is no appetite or conversation about reform. We are so used to our shambolic justice system that we are oblivious to how broken it is.

The justice system is a system of patronage and spoils like our political system. You want to become a judge not for the love of the job or the temperament for it. Judgeship offers you a higher place in the echelons of power. Once you are part of this elite club, you are all set. There are no more performance reviews. There is no reckoning of how you behave in court. There is no accountability for how you exercise your authority. And the dysfunctional state that vexes ordinary Joes is at your beck and call. Judgeship comes with tremendous personal power.

But to make the most of it, you need to work with lawyers who stand on the other side of the rostrum. The lawyers are one step below in the hierarchy but they are no ordinary citizens either. Generally aware of their rights and with greater ability to get the justice system to respond together with their organisation as a group, black coats have significant nuisance value. But like all other organised groups within the state with nuisance value, the ability to create nuisance cultivates a sense of entitlement to be afforded preferential treatment.

Within our broken justice system, lawyers and judges are two sides of the same coin. As they say, familiarity breeds contempt. Lawyers are privy to abuse of judicial power and are often partners in the process. The picture thus gets ugly when the bar and bench get embroiled. What is the benefit of being elected an officeholder in the bar (after a gruelling and expensive campaign) if you are not even going to be afforded exceptional treatment? And then if judges get used to dealing bar officials with a stick, imagine what they’ll do to ordinary lawyers – so goes the argument.

There are misbehaving judges that decent lawyers are weary of. And there are misbehaving lawyers that decent judges are weary of. But whether a judge is right or wrong, he wields the power of contempt as a weapon. Lawyers, on the other hand, need to gang up and threaten to scuttle the judicial process to defend against contempt proceedings. Why? In contempt proceedings, a judge is a judge in his own cause. Unless you are willing to risk jail time – and your career – the only viable option is to tender an unconditional apology and be done with it.

But that is also tricky business. Once you place yourself at the court’s mercy, it is for the court to forgive you or punish you after you have admitted your guilt. In face of contempt proceedings one is mostly counselled to offer an apology whether or not the behaviour in question was contemptuous. Jurisprudence under contempt law also shows how this law is seldom used to punish obstruction of justice or uphold rule of law (the purpose of its existence), and is mostly used to protect the shame of judges and circumscribe the freedom to critique judicial actions.

But neither lack of fairness in contempt trials nor abuse of contempt law by judges to scuttle legitimate criticism justifies what lawyers did in Multan last month or in Lahore this week. The success of the lawyers’ movement reinforced the message that coercion is rewarded. In that case, the object was upholding constitutionalism and rule of law. Given the molestation of both the constitution and judicial independence by a dictator gone berserk, many of us acquiesced in questionable means adopted to pursue a worthy end. We were wrong to that extent.

The success of the movement lionised those who believe that the ends justify the means. The Iftikhar Chaudhry court harnessed street-happy lawyers as foot soldiers in its tug of war with competing power elites. As they served their purpose, lawyers were rewarded with perks: relief in courts, elevation to judgeship etc. As a wily judge backed by popular opinion, Iftikhar Chaudhry was able to control the bar and the bench. But in the process he nurtured and humoured the genie that had come out of the bottle. A confrontation between the bar and bench was only a matter of time.

So how do we deal with it? Not by re-enacting the Iftikhar Chaudhry model that combined media-savvy judicial populism with unconditional patronage of judges and appeasement of lawyers. Almost everyone is aware how moth-eaten and unsustainable the justice system has become in its present non-performing state, except perhaps its two pillars: the bar and the bench. But the bar and the bench suffer from a conflict of interest. In order to fix things they will have to change their ethos and practices, which are devoid of ethics and have led to this morbid state.

In a way this bar-bench confrontation is a good thing. It has put in plain sight the ugliness that the legal fraternity revels in. The loutish behaviour of lawyers has forced many fence sitters to take a position. Will the tools and instruments of our trade be reason, logic and dispassionate application of the law or will they be strikes, coercion and violence to seek indefensible entitlements? There is hope as many lawyers are speaking up against the belligerence that is coming to define our profession. This is no time to allow group loyalty to trump principle.

Notwithstanding ailments that keep our justice system dysfunctional, if there is one judge in recent times who has shown the spunk, vision and leadership to opt for and pursue much needed institutional reform (to the chagrin of status quo judges and lawyers alike) to salvage the court system, it is LHC CJ Mansoor Ali Shah. In a polity that is defined by mediocrity and expediency anyone forcing those around him to indulge in behavioural change attracts the wrath of the pro-status quo system. Justice Shah is certainly fighting a fight worth fighting.

While one stands with the court in this particular incident where many lawyers seem to have lost their moral compass, let us understand that the reform of the bar is impossible without the reform of the bench. Charity begins at home.

Email: sattarpost.harvard.edu

The writer is a lawyer based in Islamabad.