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December 31, 2007

The promise of law

Opinion

December 31, 2007

I needed to travel out of the country for a friendÕs wedding last week. My passport had run out of pages and I needed to apply for a new one. I deposited the enhanced fee for an urgent passport and was informed that even this expedited process could take four to five working days, which would mean missing the preliminary part of the wedding. However, if I paid an additional Rs10,000 to the Rawalpindi passport office staff, my travel document would be issued on the second working day.

I reached the passport office wondering whether paying a bribe would be evil if it was extorted out of you in lieu of being granted a legitimate right. Before I could resolve my dilemma I was informed that my passport application could not be accepted, as I did not have my original computerised identity card. I informed the official that my original ID had been stolen, that I had applied for a new one and also had a copy of my lost ID. Expressing his inability to accept my application without the original ID this official advised that I meet the Assistant Director (AD) of the Rawalpindi passport office to resolve my problem.

On my way to the ADÕs office, another staff member (who had overheard my conversation) ran along to offer free counsel: the application could be processed without the original ID card if I was willing to pay Rs10,000. So now the extortion amount had shot up to Rs20,000 and I was livid at my helplessness. I explained to the AD that I already had a valid passport (only that it had run out of pages and so no visas could be stamped) along with a copy of my ID for the passport staff to be able to access the NADRA database and verify my record.

The AD shrugged and suggested that I speak with his staff to find a way out. Without mentioning the service charge I had been quoted, I emphasised that it would take 20 days for the ID to be issued and I couldnÕt logically be denied a travel document for that long. Unmoved, he said that he was just

enforcing the law. I told him that I was a lawyer (while showing him my Bar Council card) and asked to be directed to the relevant provision of the law that prevented him from processing my application. This annoyed him. He told me that I wasnÕt his boss and that it was not his job to answer my questions.

By now I had given up on my friendÕs wedding and so I insisted that as a public servant his job precisely was to answer my questions and resolve issues. Now the AD got up and threatened to have me thrown out of the passport office or arrested if I didnÕt leave. But before leaving he rubbed in my face the fact that he had the power to issue the passport, but he wouldnÕt exercise it in my favour.

I left burning with anger at how the law had been used as an excuse to trample upon my constitutionally mandated rights of free movement and to be treated in accordance with the law. I weighed my options to remedy the wrong. I could file a suit against the AD, invest time and personal effort in pursuing the matter in the courts and then wait for years in the hope that my rights would be vindicated. Or I could call up some high government official whom I knew personally, who could then impress upon the AD that if the passport wasnÕt issued urgently there could be consequences for the ADÕs career. Given the odds, the latter seemed far more appealing.

This is the nature of interaction with the law that a majority of this countryÕs citizens suffer every day, and yet we wonder why they donÕt come out on the streets to fight for the rule of law. The law as a protector of individual rights is an alien concept to the citizenry, especially in the rural areas. They witness and endure a law that is used as a means of oppression and extortion and need their local elites as mediating agents to seek access to the law and law enforcing agencies. This further skews our system of governance that amounts to little more than the personal patronage of our elites put together.

The existence, status and importance of local elites, in turn, depends on their ability to manipulate the legal processes, wherefrom stems their desire to seek state power and patronage even at the cost of their soul. Thus the justice system remains depraved, the system of governance stays dysfunctional, the public sector reeks of corruption, political status quo continues and the vicious cycle goes on. Unfortunately there are no quick fixes here. The remedy still lies in upholding the rule of law, for the law defines the rules of the game. Post-modernists would argue that law is in itself a means for the elites to emasculate ordinary people. And such criticism is valid to an extent.

Yet the procedural safeguards (due process) mandated by the law are the only assurance of Òlegal equalityÓ in an unequal world. Without this foundation even the promise of political, social and economic equality doesnÕt exist. And without an umpire who is willing to uphold rules of the game without considerations of fear or favour, the concept of rule of law will remain as unattractive as it currently is. Reviving the pre-Nov 3 judiciary is no panacea for our system of governance. It is only a starting point. But there is no way to short-circuit this step. After the coup of 1999 we had to wait eight years to go back to square one in where the political process stood. For an honest political culture cannot be instilled by use of a magic wand, but must be allowed to evolve.

Likewise a functional justice system must evolve too and for that an independent judiciary is a prerequisite. The pre-Nov 3 judiciary was far from perfect. But it had garnered enough independence to be able to support a judicial reform process and function as a protector of the Constitution and not just as an appendage of the executive. True, the gains of judicial independence and activism would trickle down to ordinary people in a meaningful way once the lower judiciary begins to function independently of the ruling regime, local elites and financial inducements. But the elixir of reform can only flow down from the top, and not the other way around.

Our nation cannot wait another decade for independent-minded judges to emerge from a compliant and compromised judiciary hastily put-together by the General. The Machiavellian antics of our mainstream political parties have damaged the lawyersÕ movement, but not fatally. Mainstream political parties (especially the PPP) might have cashed out the pressure built by this movement so far, but they cannot force lawyers to recognise PCO courts. The pro-rule-of-law movement is bound to experience another surge once the elections are behind us. Non-PCO judges and Aitzaz Ahsan and other leading lights of the lawyersÕ movement cannot be detained indefinitely, and neither can all pro-restoration election candidates be kept out of Parliament.

If the judicial branch of the state is to be regularised the issue of non-PCO judges will have to be addressed. It is crucial for the lawyers to remain united in pursuing this cause. When required to choose between his identity as a party member or a lawyer, Aitzaz chose the latter and sacrificed his almost confirmed seat in Parliament. Once the shape of a new government emerges, other lawyers with political influence, such as Sardar Latif Khosa or Dr Babar Awan, for example, must not falter while fighting for an independent judiciary, despite their partisan affiliations.

It must be reiterated that the pro-rule-of-law movement is not merely about restoring judges to their rightful office. This nation has a unique opportunity to strengthen the judiciary as an institution and entrench within it norms of independence and integrity that will bind all judges who succeed the non-PCO judges and rid our reliance on a conscientious few to mete out justice. And this crucial opportunity must not be squandered.

The writer is a lawyer based in Islamabad. He is a Rhodes scholar and has an LLM from Harvard Law School Email: [email protected]

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