Tuesday October 19, 2021

What’s wrong with lawyers?

December 16, 2019

From heroes to zeroes, lawyers have come a long way since the movement for the restoration of Justice Iftekhar Chaudhury in 2007. The movement was purportedly aimed at the independence of the judiciary and rule of law. Ironically, it turned out to be a struggle for the tribal supremacy of the legal profession at the cost of peoples' aspiration for rule of law in this country.

Chaudhry himself played a key role in this transformation by undermining the other two pillars of the state while ensuring lawyers' support as foot soldiers for his adventures. Did Chaudhry understand that he was not only undermining a nascent democracy but also the very principles that are at the root of the institution of the state and his own profession?

There is power in numbers. Humans learnt it while hunting in bands and more so when they settled down for agriculture and formed tribes. Later, they also formed professional guilds and profession based castes to get a better deal in society. Some professions became superior while others were relegated to an inferior status, not only because of the nature of service, but also because they were able to gang up more effectively.

The state offered a different bargain — individual citizens getting rewarded and punished for the good and the ill they do in society. This revolution was so large that Islam called the tribal phase as Jahiliya, which was deemed an antithesis to the message of Islam.

What makes lawyers think and act like a tribe, willing to attack a hospital to avenge a tribal insult? Perhaps they know the naked truth better than us all — that rule of law is a mere fiction in this country. Perhaps they are aware that they are paid to maintain a mechanism of social control meant to perpetuate the entrenched power structure. They play this soul-crushing game every day.

Like many post-colonial states, most people in Pakistan use the justice system not to have their conflicts resolved but to take the conflict to another level where the might of the state can be used to inflict damage on the opponent through an unfair, expensive and prolonged legal process.

Even the very first step of dealing with the police can bring a poor person to his knees. Put a few months or years of litigation and even a well-off person would lose money and be willing to submit to the dictates of power.

Lawyers deal with the police and know the rates. They are familiar with freelance witnesses roaming around their offices. They have mastered the art of disrupting the legal process. They know how to prolong a case to tire out the less well-off, the less powerful litigant and bring him to his knees.

The prolonged judicial process often paves the way for a final out-of-court settlement that is bound to be tilted to the interests of litigants with deeper pockets and more staying power. In this way, the whole judicial system can be seen as an arm to an informal jirga/panchayat system where most cases are resolved.

My Lord Chief Justice Khosa had termed a former prime minister as the Sicilian mafia. Isn't it ironic that the legal fraternity carries more characteristics of a mafia? Politicians after all have to be elected by the people and then have to be accountable to their voters and to our lords who humiliate and unseat them quite often.

Who is the legal fraternity accountable to? Only a saintly order can be allowed to select their own members and be accountable to themselves. Who can make a judge accountable when his interference in financial matters inflicts billions of dollars of loss upon a hapless nation? Who will make lawyers accountable?

Judicial inefficiency is not only bad for litigants. It is also bad for economic prosperity, undercutting a nation’s wealth and economic growth. According to Richard Allen Posner, an American jurist and economist: “Markets depend on the establishment of an environment in which legal rights, especially property and contractual rights, are enforced and protected — an environment that is taken for granted in wealthy nations.”

We have a full-blown crisis at hand that cannot be solved by the state playing the role of an arbiter between warring tribes. The legislature must intervene and amend the Legal Practitioners and Bar Councils Act, 1973 that empowers bars to issue licences to lawyers and carry out their accountability. Some of the authority should go back to the state and a new mechanism of accountability of lawyers must be formed.

The case of the PIC has put the Imran Khan government on trial. It is a test of his executive to take it to the logical conclusion. Finally, judges have shown too much leniency towards errant lawyers. Chaudhry Iftikhar janissaries must be put back into the bottle.

The writer is an anthropologist and development professional.

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Twitter: @zaighamkhan