Legal eye
The writer is a lawyer based in
Islamabad.
Within hours of taking oath as Chief Justice Lahore High Court, Justice Mansoor Ali Shah was laying bare his judicial reform and rehabilitation agenda. Someone like him getting appointed as CJ of Pakistan’s largest province is a miracle.
We are now living in times when merit and excellence, integrity beyond reproach, audacity to be independent, and dynamism are seen as obstacles to career progression. To preserve our state of slumber, our Mansoor Ali Shahs must be kept away from offices where they can instil change.
We all know that our ‘system’ is going bust and it is individuals of extraordinary ability that keep it going. The eligibility of Justice Shah being appointed CJ LHC has to do with him being elevated as judge at the right time. But the credit for making him the Punjab judiciary’s head, in full view of his unorthodoxy and disquiet for status quo, goes to those Supreme Court judges who now run the Judicial Commission. Our entrenched ethic of power otherwise is such that those in power only feel secure by surrounding themselves with pliant mediocrity.
The lawyers’ movement swept us up in euphoria for change. We won’t see another chief justice as powerful as CJ Iftikhar Chaudhry (which had much to do with the circumstances in which he was restored). The nation was behind him, lawyers in ‘jaan nisar’ mode, judges in awe, and other state institutions (the executive, the establishment) already bitten, shy to fidget with him. He could really have transformed the justice system if he wished. What a wasted opportunity and disappointment his time turned out to be.
When it came to judicial appointments he chose personal loyalty over merit. He retained Justice Kh Sharif as CJ LHC and directly elevated to the Supreme Court Justices Saqib Nisar and Asif Khosa, judges of extraordinary calibre who could have reformed the Punjab judiciary given a chance. Many hoped that with Justice Nisar (in line to become CJ in a few months) and Justice Khosa (the second senior most judge, also in line to become CJ in a few years) as key Judicial Commission members, merit would find its rightful place back in judicial appointments.
There is reason for hope. It takes the right kind of self-confidence (not to be confused with cockiness or self-righteousness) to recognise that surrounding oneself with strong associates, the ones who have the intellect and ability to disagree on the basis of arguments and the strength of character not to be daunted by rank or power, multiplies your power and influence as opposed to diminishing it. Justice Shah, who can be anything but someone’s yes-man, being appointed CJ LHC is certainly a triumph of hope over our cynical experience.
With Justice Nisar as CJP, Justice Khosa as the senior puisne judge, and Justice Shah as CJ LHC, there is opening up a window of opportunity for meaningful reform of the justice system. We also have Justice Yahya Afridi, a shining star in the Peshawar High Court, next in line to become CJ PHC. That this leadership could have a solid run for a few years creates the possibility of a judicial reform agenda being resolutely pursued, such that quality of justice in Pakistan no longer remains contingent on individuals at the helm.
Meaningful reform doesn’t mean CJ Chaudhry style populism: the thundering sermons and suo motus that make headlines but provide nothing but temporary catharsis to s non-litigating public. Everyone recognises that our justice system is replete with problems. Judges are convinced that lawyers are to blame. Lawyers question the ability and commitment of judges to work. And the public-at-large believes that all of us – judges, lawyers and court staff – are one big mafia up to no good. There is some truth in all of this. There is need for reform all across.
But it will need to start from the top and it is judges who are in the driving seat. Every lawyer wants to win cases. But, short of that, he wants to be before a judge who will be fair and neutral, who will give him a patient hearing, apply his mind to the merits of the case and decide the matter without undue delay. Likewise, every petitioner wants to be before a judge who will side with him. But if he can’t get that, he wants to be before a judge who will not side with anyone else and provide a level field to all parties.
Identifying the ailment of our justice system is no rocket science. The hardest question is why nobody does anything about it. The simple answer: we don’t have in abundant supply folks who wish to expend their energies fighting the rotten status quo and in the process make enemies of the powerful interests being served by it. Justice Shah is among the exceptions. And those celebrating his appointment and those dreading it are doing so for the same reason: they think he is a man who means business at the right place and at the right time.
Those who have been in Justice Shah’s court or have followed his work as part of the LHC’s administration are aware that he knows the problems and has struggled to devise solutions. As a judge he pushed for court and case management systems. He championed the need for transparency in case marking to disable litigants from cherry-picking judges they wish to be before. He has advocated the cause of specialised benches to build a system that gets every case before a judge who has the right experience and expertise to adjudicate its subject matter.
He spearheaded the drive to establish a resource centre at the LHC staffed by qualified members of district judiciary to conduct research for high court judges. He has backed making LHC tech-savvy and friendly. He has propagated the need for making the Punjab Judicial Academy a true centre of training and excellence and not just a parking slot for well-connected retired judges. And he has been a staunch proponent of making performance the trumping criterion for judicial appointments and promotions.
To tie all of these smart and sensible ideas into a holistic reform agenda and then find willing partners amongst subordinate, peers and seniors within the judiciary, as well as right-thinking agents of change within the bar and the executive branch is where the challenge lies. The lone wolf stands out in a herd of sheep, but cannot be the shepherd. The true challenge of leadership lies in inspiring behavioural change. And entrenched behaviours change only when a leader succeeds in convincing ordinary folk that a better future is within grasp.
Most will agree that the best way to reform the judiciary is to make it a meritocracy: make the institution a sponge for talent, hire the best human resource available, create conditions to retain it, make training mandatory, performance the prime criterion for progression and hold to account the free-riders and the corrupt. The army has a model of institutional strength and sustainability, rooted in how it trains and promotes its members, which doesn’t rest on the shoulders of extraordinary individuals alone. This can be emulated.
Reform of the justice sector is both doable and overdue. The present judicial hierarchy, as it is shaping up with men of conscience and character coming to the helm, creates a unique opportunity to make it happen. Prophets of doom will emerge and caution that nothing will be more dangerous for the ‘system’ than disturbing the applecart. They ought to be ignored. The ‘system’, as it is, has become unsustainable. It will have to be rebuilt. Or else it will be wiped away and replaced by some other system that either destroys or delivers.
The only word of caution for Justices Nisar, Khosa and Shah: the greater the potential for ushering change, the greater the disappointment if expectations are let down.
Email: sattar@post.harvard.edu
