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The larger system

December 26, 2017


IT seems to have become a national sport to blame judges for all that goes wrong in Pakistan. From prosecutorial misconduct, negligent inquiries by investigating agencies and loopholes in the law itself, to executive collusion, Pakistani judges are, unfortunately, held responsible for anything and everything that is found to be wrong with the system.

In pointing fingers, it is forgotten that the judges are only one cog in the larger wheel of the judiciary. The larger system is made up of a plethora of stakeholders, including the legislature that is making the laws, the executive which is supposed to implement them, and, of course, the lawyers themselves. At each level, there are shocking failures leading to overall paralysis.

The federal legislature, for example, is infamous for passing laws which discriminate against minority groups and strip them of their rights to practise their own faith, whatever it may be. They have also passed laws allowing persons disqualified from contesting elections to head major political parties, and have codified laws that have been criticised for allowing murderers to get off by paying the victims’ families. The provincial legislatures have been found to pass laws reinstating politically aligned individuals in employment — individuals who had previously been removed on charges of misconduct.

The judges, even if disapproving of such laws, would be bound by the same. Although it is true that they retain the power to judicially review laws, such powers have their limits, and can’t be used to transport the judges from the realm of interpretation to that of lawmaking.

Our judges are just one cog in the judicial wheel.

Investigative agencies like the FIA and NAB and even the police are no better. Their incompetence has been testified to by the Supreme Court itself. Whether it has been the investigative abilities shown in the Benazir Bhutto killing case, NAB’s apparent penchant for preferring plea bargains in order to obtain lucrative pay days, or the procurement of false confessions, these agencies have been guilty of letting down the prosecution, whether through complicity or ineptness. No wonder the judges often have to acquit parties on account of insufficient evidence.

Further, the police and other law-enforcement agencies also have a responsibility to ensure compliance with the court’s orders. When a judge passes an order, the state must ensure it is implemented. Being an organ without any enforcement wing, the judiciary relies solely on the executive for upholding its verdicts. If not implemented, the sanctity of such orders, the judiciary’s prestige, rule of law, and respect for institutional space diminish over time, leaving violators emboldened and victims frustrated.

Unfortunately, that is exactly what happens. On any given day, judges pass orders against the land mafia, delinquent builders, individuals violating court orders and other deviants. However, the lack of law-enforcement support renders such verdicts ineffective, or their delayed implementation serves to frustrate the very object of the orders.

In addition, the larger system is fed by lawyers, who not only represent their clients, but are also paradoxically court officers. They are responsible for providing assistance to the courts in reaching the correct legal position in a given case and upholding a decision. They are supposed to do this by giving well-researched legal arguments to the judges, inculcating and advising clients to abide by the law, and by not subverting any decision which may have been passed against them or their client.

However, the reality is different. In Pakistan, the lawyers’ community consists of many types of individuals, including those who openly assist in subverting the rule of law. They may do this by helping their clients flout the law, resorting to misrepresentation before the court to procure benefits for their clients, assisting their clients in fleeing the courtroom on rejection of bail, or using intimidatory tactics to obtain favourable verdicts. If nothing else, they may advise their clients to disregard court orders, telling them that any such violation can be atoned for by a mere apology to the court.

In a nutshell, solely blaming judges for the current state of our judiciary is unfair to say the least. In order for the judiciary to become more robust and authoritative, each stakeholder will have to work in tandem with, and in support of, the judges in question. Without such synchronisation and unity, like all else in Pakistan, the judges will likely be banished to the annals of history as just another group of lone rangers who had been trudging along in the purported pursuit of an effective and just system that is responsive to the masses.

The writer is a partner at a Karachi-based litigation firm.

Twitter: @basilnabi

Published in Dawn, December 26th, 2017