Our nasty hangover

Babar Sattar
The writer is a lawyer based in Islamabad.

Much has been said about the buffoonery of black coats in Lahore last week. The ugly episode raises fundamental questions about the authority vested in the office of the chief justice, the desirable role of the bar and the bench, their modes of interaction and mutual relationship, and the depraved ethos that pervades the legal fraternity and our justice system as a whole. All these questions need to be approached in the backdrop of the objects and promises of the rule of law movement, with a dispassionate focus on whether or not the mechanism of strikes and street agitation, imperative in the initial phase of the movement that was singularly focused on restoring an independent-minded judiciary, is still a desirable means to reform the justice system.

Let us get the black and white issues out of the way first. Neither the decision of lawyers to resort to violence in order to voice their demands nor police brutality and indiscriminate beating up of lawyers in their chambers and the bar room can ever be justifiable. As to the merit of the demand seeking transfer of the district judge Lahore, lawyers have no business interfering with or influencing the composition of a court. If the logic of the argument made by the Lahore Bar Association is acceptable, can the High Court and the Supreme Court Bar Associations also gang up and seek removal of members of the superior judiciary?

Judicial robes don't come along with a licence to talk down to lawyers. And in any civilized society, being treated with respect is a fundamental human right. As officers of the court and professionals seeking to protect and defend the interests of their clients, what lawyers must demand is the right to a patient hearing by a neutral arbiter of the law. And to the extent that the brusqueness of a judge begins to interfere with his neutrality and administration of justice, a lawyer is within his right to file a complaint for judicial misconduct. But a 'culture of honour' that justifies the transformation of an attorney into a rogue upon being provoked by the rudeness of a judge must not be allowed to corrupt the ethical traditions of this fine profession.

The lawyers' demand seeking the removal of the Lahore District Judge was unreasonable in the first place. Their audacity to vandalise the chamber of chief justice Lahore High Court to exhibit their disquiet was alarming, especially in the backdrop of a growing trend amongst lawyers to rely on violence in dealing with judges, police, media and even litigants. Thus a settlement of the 'bar-bench' face-off in Lahore resulting in the removal of the Lahore District Judge is disillusioning, for it is the antithesis of the foundational principle underlying the rule of law movement.

The reaction to March 9, 2007, when the chief justice of Pakistan was deposed, and November 3, 2009, when the entire superior judiciary was sent packing, was about one basic thing: security of judicial tenure as a prerequisite to judicial independence and rule of law. The argument was that if judges weren't allowed to discharge judicial duties without considerations of fear or favour, they would never be neutral arbiters of the law capable of dispensing justice. The other potent argument in favour of restoration of the November 3 judiciary was that if we allow arbitrary removal of judges acting independently, in future no judge would ever risk his job merely to do the right thing.

Does the district judiciary (which remains the wrinkled face of our justice system confronting ordinary citizens) not need security of tenure to mete out justice? Are the jobs being performed by judges of the superior courts so fundamentally different from those of district court judges that the logic of judicial independence is simply not relevant for the latter? Now that Zawar Hussain Sheikh has been removed, will his successor dare tell functionaries of the bar that they have no business interfering with ministerial appointments in the court?

Hasn't a loud message been sent to all district judges around the country that appeasing leaders of the local bar is part of their job description if they wish to continue to serve in their positions? And why should posting and removals of district judges be tied to the whims of the provincial chief justice? While it is a settled law of this country that administrative discretion vested in executive authorities must be structured and never exercised in an arbitrary manner, why is it that the same principle finds no mention or application when it comes to the exercise of administrative discretion by heads of superior courts?
Other than the logic of principles backing the rule of law movement and the overwhelming hatred for Musharaf, one important reason why the cause resonated with ordinary people was because lawyers, as its flag-bearers, didn't seem motivated by self-interest. In seeking the restoration of illegally removed judges and sacrifising their means of subsistence in the process, they were not seeking any bounties for themselves. It was this selfless struggle for rule of law at the peril of personal liberty, professional advancement and financial security that earned them the respect and gratitude of this nation.

Restoration of an independent-minded judiciary was only meant to be the first (necessary but insufficient) step in the rule of law movement that was expected to remove obstructions to reform and empower judges who together with leaders of the bar were to emerge as agents for progressive change. But now that conditions are ripe to embark on the crucial journey of entrenching rule of law, and reforming the bar and the bench together with the procedures, practices and culture that make justice a forlorn hope for the ordinary Joe in Pakistan, why have we suddenly gone back to our old ways: the bench playing favourites and the bar engaging in sycophancy on the one hand and rent-seeking behaviour on the other?

Was it not the responsibility of leaders of the rule of law movement to taper the excitement of lawyers they eagerly brought onto the streets and lead them back into courtrooms to argue their briefs? Should they not have attempted to treat the hangover of the first phase of the movement and prepare their younger colleagues for the behavioural changes and self-reform that we urgently need as a professional group? Should the restored bench not have preoccupied itself with urgently putting the lower rungs of its own house in order?

Is it too naïve a thought the treatment of a lawyer in a courtroom should be determined by the strength of his legal argument and not his role in the rule of law movement or his facility with flattery? While the lawyers were forced to come out on the streets during the first phase of the rule of law movement because there were no legal mechanisms available to effect a change, why is it that after the restoration of an independent judiciary they are still being egged on by members of the judicature to functions as their 'foot-soldiers'? Aren't lawyers expected to function independently and critique judicial pronouncements to improve the quality of our jurisprudence?

The Lahore episode is the latest manifestation that the legal fraternity -- the bar and the bench included -- is losing its way. Let's all take stock and make amends instead of brewing conspiracies

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