Path to legal reform

Updated 08 Oct 2016


How does the legal community respond to the massacre of lawyers in Quetta (Aug 8) and the killing of lawyers in Mardan (Sept 2)? The massacre in Quetta was especially tragic because the death of so many lawyers has created a legal vacuum affecting the provision of competent legal services in Balochistan. More importantly, however, these lawyers were at the forefront of the lawyers’ movement (2007-2009) and of the democratic and human rights struggle of the people of Balochistan.

In the past, when some well-known senior members of the legal profession were busy acting as collaborators of Gen Pervez Musharraf as his lawyers, legal advisers and attorney general, the lawyers of Balochistan were spearheading the movement against the brutal repression of the people of Balochistan by the Musharraf regime. If this country survives as a united modern constitutional democratic state, then their contribution has been critical.

But how does one respond to such massacres and killings? There are two reactions, one of despair, the other of delusion. The government response is one of despair which is to reduce the entire issue to one of compensation for victims ie commodification and monetarisation of the struggle of lawyers, with vague and useless assurances of future security and wild allegations against hidden forces.

The judicial system will either perish or become irrelevant if far-reaching reforms are not initiated.

On the other hand, the response of the legal community is one of delusion as loud sermons are given about the resilience of lawyers and their ‘guaranteed’ victory, with blame and responsibility being completely shifted onto the government without any flaws being recognised within the lawyer community and judicial system.

But is there hope based on an analysis of history and the potential for change?

Hope from history: “Men make their own history but they do not make it as they please,” as Marx rightly noted. There are certain recognisable positive trends in Pakistani history. Firstly, since 1973, the Constitution has been suspended three times but could not be abrogated as in 1958 and 1969. Moreover, the last martial law of 2007 lasted for less than two months. Therefore, constitutionalism against militarism is on the rise and militarism against constitutionalism on the back foot.

Secondly, with constitutionalism is the rising power of the judges. Nothing is taboo anymore — prime ministers can be removed for disobeying a judgement of the court (NRO case), the treason trial of military adventurers (Musharraf) can be held, and the courts are more accessible to the poor and powerless (as seen in the expansion of public interest and human rights cases). Moreover, there is a revival of creative legal thinking to solve difficult problems, as seen in the judgements of Justice Asif Saeed Khosa, Justice Mian Saqib Nisar, Justice Munib Akhtar to name a few, and to initiate judicial reforms, for example, Punjab Chief Justice Mansoor Ali Shah.

Thirdly, Alexis de Tocqueville in his classic study Democracy in America put forward the thesis that the rule of lawyers leads to the rule of law. Therefore, the continuing rise of Pakistani lawyers as a powerful social and political power group is a clear sign of the possible future domination of the rule of law.

Fourthly, with the rise of constitutionalism and judicial and lawyers’ power, there is a continuing development of the human rights movement post-1980s in the form of increasing human rights court decisions after 1988, the emergence of a civil society human rights consensus and the present rise of state institutions like the National Commission for Human Rights. Therefore, all these historical trends point towards a possible future dominated by constitutionalism, judicial and lawyers’ power and human rights.

Ghosts of the past: Obsolete remnants from the past can destroy this possible future. Two are particularly dangerous. Firstly, the continuing domination of a political and legal militarism. Politicised thinking connected to the military, as opposed to the military as a professional institution, has the tendency to still lecture all of us about the ‘virtues of controlled democracy’ and the ‘miracles of military justice’. Such elements are now dinosaurs with the disappearance of military dictatorships globally but sadly, their self-righteousness blinds them.

Secondly, the supporters of the legal status quo ie business as usual. There is now a clear divide in the legal community between judges and lawyers who believe that large-scale legal and judicial reform is absolutely essential and judges and lawyers who reinforce parts of this unworkable and unjust legal and judicial system. The former group is in the majority but the latter are still a very powerful group.

What needs to be done: The task ahead has been brilliantly captured by Supreme Court Justice Qazi Faez Isa’s public letter to the Quetta’s bereaved: “What should we do now is the question that arises in these testing times?... They (the martyred and injured) now look to us in this hour of trial to see whether we too will be able to demonstrate comradeship … above all, whether we will be able to deliver justice even more effectively in the circumstances.” (Brackets added.)

To translate this task into more concrete language, three struggles are essential. Firstly, the judicial system will either perish or become irrelevant if far-reaching judicial reforms are not initiated. The question is not whether there are practical difficulties in providing speedy justice. The greatest difficulty lies in changing the sub acha hai (all is well) mindset. Reform will begin only if legal and judicial change dominates the legal and judicial mindset.

The second concerns the end of the legal aristocracy of a few rich and connected lawyers and the promotion of the overwhelming majority of young but disempowered lawyers. We need to recognise this class divide in our legal profession.

The third is to further make the judicial system accessible to the poor and less powerful, something which was the central project of the lawyers movement and the Chaudhry court (2007-2013). It is the common people who will protect lawyers and courts but only if the judicial system is relevant to their lives.

So, this is the question: will the legal community seize this historic opportunity or will it let it slip between its fingers?

The writer is a Visiting Fellow at the McGill University, Canada.

Published in Dawn, October 8th, 2016