On picking sides Legal eye

The writer is a lawyer based in Islamabad.
There is a harrowing sense pervading these days that Pakistan is dangerously close to the precipice. There is no room for complacency and one must pick sides in this fight for the life and health of our country. But can picking sides mean standing unconditionally by an individual or an institution? Should one pick Chief Justice Chaudhry over President Zardari? Is General Kayani better than the politicians? Can one pick the judiciary or the khakis over the executive or parliament? In these polarising times everything has become relative and absolute at once: the relatively better individual or institution is the cure for all ills; and you ought to exhibit absolute support for such institution or individual.
If you justify a decision of the court you are against democracy and the will of the people. If you criticise a decision of the court you are against rule of law and judicial independence. If you support continuity of the political process you want to sell this country and its assets for a song. If you question the actions and decisions of the ruling political elite you are a closet-khaki secretly vying for the saviours. So which amongst our institutions is dispensable? Can the judiciary fill the vacuum created by a defunct executive? Can it discharge the duties to be performed by a functional parliament? Should the judges and the generals be egged on to handpick technocrats to save the country from unraveling? Must we revert to failed ideas because the going has gotten tough?
The bickering over who is supreme in this country, parliament that writes the Constitution or the judiciary that interprets it, is a frivolous one. Why does one pillar of the state have to be taller than the others? We need an independent judiciary, a functional parliament, a performing executive, a strong army, an uncensored media and a vibrant civil society. None of this is expendable if Pakistan is to thrive. And the rot that we witness isn’t restricted to any one institution or a handful of individuals. If there is one lesson to be learnt from the various scandals of the last few weeks it is that all institutions of the state and society are in urgent need of self-reflection and reform. The assertion that one individual is the root cause of all problems or another can be a total solution is flawed.
One needs to side with the judiciary if its orders are being flouted or its independence is under attack. One needs to side with parliament if its right to amend the Constitution is under threat. And one needs to side with the executive if its authority to make honest policy choices is being usurped by any other institution. And there is no inconsistency in any of this because all of this flows from the principles stipulated by the Constitution. But to paint an individual or an institution as a messiah and profess to extend unconditional loyalty to it on grounds of exigency is to continue with the grand folly that has hurt us many times in the past.
With the NRO implementation matter in the court we are once again either defending the judiciary as a messiah or projecting it as a coup-maker. As a citizen one would like the entire Swiss letter business to go away at this juncture. This position doesn’t flow from any principal but merely from issue-fatigue. For rule of law to prevail it is essential that court orders be implemented. For legal equality to mean anything it is imperative that the high and the mighty are held to account along with ordinary Joes. But amongst the gazillion issues that are confronting us at the moment the Swiss letter doesn’t seem to be the most pressing. But as a lawyer one understands that issue-fatigue cannot be a valid legal consideration for the court.
As a citizen one would wish for the court to find a way to get around the problem of jiyala prime ministers exhibiting unconditional loyalty to the person of Asif Zardari and refusing to implement the NRO ruling. But as a lawyer one would criticise a decision of the court that treats the current prime minister in a manner different from the last one on the exact same issue. Should the court form a commission to write the letter to the Swiss? If it could why did it not do so the last time around? Should the court adopt a different course now in view of public opinion? While trying not to eat up two prime ministers within a span of months might be a persuasive common sense view, is it a valid legal one?
While the court’s hand might be tied when it comes to enforcing the law, it suffers from no constraints on the issue of institutional reform. Till such time that the court continues to point fingers at the other branches of government but remains unresponsive to its own need for reform, allegations of righteousness, excess and partisanship will continue to resonate. There are at least two areas of institutional and behavioral change that merit immediate attention.
First, the lack of distinction in public mind between the office of chief justice and the Supreme Court is inimical to judicial independence. There are 17 legal minds comprising the Supreme Court who have equal judicial authority. What then creates the impression that the CJ is not the first amongst equals but the boss of the other 16? There is no reason why in the exercise of administrative authority a chief justice should not abide be the principle of exercising discretion in a structured and transparent manner that judges apply daily to exercise of executive discretion.
As most accusations regarding court’s partisanship spring from the timing of cases being fixed and heard and who hears them, would it not be appropriate if there was a committee of the senior most judges of the SC, including the CJ, who administered a transparent case management system and constituted benches in view of the expertise of judges, as opposed to the CJ exercising such discretion singlehandedly? Then, even if the court makes mistakes such as a smaller bench overriding the construction of law of a larger bench (as in the prime minister’s disqualification case), such mistakes could simply be explained as mistakes.
The second area requiring intervention is the relationship between the bench and the bar by reinstituting appropriate distance between them to safeguards the independence of both. The bar and the bench cannot afford to be perceived as functioning in the fashion of a political party. The mindless strikes, beating and banning lawyers over difference of opinion, public rallies in support of the CJ, the hushed whispers that ‘tehreek’ lawyers have direct access to the CJ and take their cue from him, the contemptuous insinuation that personal loyalty to the CJ embellishes one prospect of being elevated to the court etc., are all damaging the for the bench and the bar.
The Legal Practitioners and Bar Council Rules state that, “judges, not being wholly free to defend themselves, are peculiarly entitled to receive the support of the bar against unjust criticism and clamor.” But they clarify that, “marked attention or unusual hospitality on part of an advocate to a judge not called for by the personal relations of the parties subject both the judge and the advocate to misconstructions of motive.” And that, “a self-respecting independence in the discharge of professional duty… is the only proper foundation for cordial, personal and official relations between the bench and the bar.” These rules leave no room for lawyers to function as the judiciary’s foot soldiers.
This indeed is time to pick sides. But the side must be that of principle and not that of any individual.
Email: sattar@post.harvard.edu