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THE passing of the 21st Amendment was an embarrassing moment in the constitutional history of Pakistan. One would have hoped that the establishment of military courts would at least serve as a moment of awakening for the legal community. Unfortunately, a meeting of the Pakistan Bar Council (PBC) last month suggested otherwise.
There is a consensus on the contribution of our dysfunctional criminal justice system in pushing us towards where we stand today. The judiciary, law-enforcement agencies and the state have had their fair share of criticism but one major component of our legal system continues to evade, let alone, admit liability: the lawyers themselves.
As a lawyer, one feels responsible for the present constitutional mess. There is no doubt that the state has failed to bring adequate reforms and provide necessary resources, but we must also learn to look into ourselves and admit that our legal culture and practice has made matters worse.
After all, is the legal community not a part of the entire judicial system just as much as the judiciary itself? Does the speedy disposal of cases not depend on the lawyers just as much as it does on procedure? Does the failure of the judicial system not also indicate a failure on part of the legal community?
Lawyers should review their own faults.
Then, should the 21st Amendment not be seen as an opportunity for introspection within the legal community? Is it not time that we turn inwards and reflect on our own selves? Assess our shortcomings? Evaluate our limitations and analyse the deplorable conditions in the lower courts? Should we not begin to question the legal practices we have entrenched and the legal culture we have fostered?
Consider, for instance, Pakistan’s lower courts. This is the forum an ordinary citizen approaches only to discover that the courts of first instance are in fact hostage to the municipal or provincial bar council. Calls for going on strike are a regular occurrence in Lahore, now averaging twice (or even more) in two weeks.
Reasons can vary from the killing of a bar member to a minor scuffle with the traffic police. This practice of going on strike for the most trivial reasons has now crystallised into an accepted ‘legal culture’ of our lower courts.
The success of the lawyers’ movement has had an adverse impact on our legal culture. It has given the legal community a sense of power and entitlement, a belief that they command popular support and thumping confidence that stems from having ousted a dictator.
Consequently, strikes have become a norm; threatening judges a custom; and damaging property a routine. Throughout the country, members of the bar are free to act with impunity and one may question if this really is the same profession that was once M.A. Jinnah’s?
There should be no doubt that the 21st Amendment is a watershed moment in our constitutional history. The PBC had the opportunity to use the present criticism of our judicial system as a springboard to garner support and reverse the negative imprints left behind by the lawyers’ movement. Rather, it chose to observe a black day and in doing so, legitimised the existing culture that is partially responsible for the present mess.
Would it not have been better if the PBC had held up a mirror to the legal fraternity and mustered up the courage to identify its faults? Would it not have been more fitting if it had identified what the legal community could do to improve the judicial system? Or what changes should the legal fraternity embrace in order to, at least, dispel the impression of a stuttering judicial system? Would it not have been better if the PBC had provided an action plan that the legal community should adopt in order to improve our judicial system and thereby reduce the temptation to refer to military courts?
Would it not have been more suitable if the PBC had admonished the legal community for adopting practices that contribute in delaying the resolution of disputes? Would it not have been more appropriate if the PBC had passed a resolution censuring all proponents of the rule of law who use legal procedure as a smokescreen for the abuse of law? Would it not have been better if the PBC had pushed for a stronger regulatory framework for punishing corrupt legal practices?
Maybe, the opportunity has not been lost as yet. There is still some time. With a constitution petition pending before the Supreme Court — the only sensible action taken so far — the PBC should now shift its emphasis towards winning back the public’s confidence in our judicial system. Even if the Supreme Court upholds the 21st Amendment, the legal community could still make such military courts redundant by improving its own performance.
The writer is a lawyer.
Published in Dawn, February 17th, 2015
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