Establishing the law by breaking the law?

The deep irony of the current tug-of-war between the bar and the bench, much of it violent, should not be lost on anyone. The story has three levels, the surface narrative, the politics behind it, and, finally, the abstract principles on which the legal community and Pakistan’s civil society – a nebulous term, if any – fought, presumably, for the independence of the judiciary and, with it, democracy.

What is visible is the easier part. The Lahore District Bar Association lawyers decided they don’t like District and Sessions Judge Zawar Ahmed Sheikh who must be sacked or transferred. Reason: he misbehaves with lawyers. Misbehaving with the lawyers, incidentally, now generally means the temerity by any lesser mortal to not sit, stay and stand up when a lawyer commands him to do so.

More concretely, sources indicate that Judge Sheikh would not accede to some lawyers’ extra-legal demands. He also, reportedly, refused to place the district bar’s earmarked men in auxiliary jobs at the courts. The bar has a quota to get some of their people placed in such jobs, more an accepted bad practice than any legally-sanctioned right. If reports are anything to go by, district bar officeholders actually make money out of this.

Getting rid of Judge Sheikh therefore made eminent sense. The lawyers allege that Mr Justice Khawaja Sharif, the Lahore High Court chief justice, had indicated that he would be transferred. However, Judge Sheikh, according to their narrative, was sent on leave for the dust to settle down and reappeared on the scene. This was casus belli for LBA lawyers and they stormed the LHC CJ’s chambers.

The Punjab government then enforced Section 144 in the area, and the next day when the lawyers tried to take out a rally on The Mall, they were stopped. In the second round, they got into a confrontation with the police which then responded with force and arrested about a hundred of them.

The next day the lawyers also got into fisticuffs with television reporters and cameramen. The LBA and the Punjab Bar Council lawyers have now passed a resolution, apparently also supported by the Lahore High Court Bar Association, banning the entry into their premises of the LHC CJ, a number of other judges, and several prominent lawyers that spearheaded the 2007 movement. Additionally, the bar has suspended the membership of Punjab Law Minister Rana Sanaullah, the LHC CJ’s two sons and son-in-law, and the LHC CJ himself.

This is where the politics of the confrontation comes in. The LBA president belongs to the Peoples Lawyers Forum, affiliated with the PPP. The LHC CJ is considered close to the Punjab government.

But this is not all. The Supreme Court Bar Association election scheduled for October 27 is a contest between Asma Jehangir and Ahmed Owais. Jehangir is close to the PPP, Owais to lawyers of the movement. The prominent leaders of the movement, Chaudhry Aitzaz Ahsan, Hamid Khan et al, are supporting Owais.

The higher level of this politicking has to do with the logjam between the PPP government and the Supreme Court of Pakistan on the one hand and the Centre-Punjab tussle on the other. The federal government’s strategy, executed through Federal Law Minister Babar Awan, is to create a rift at two levels, between the lawyers and between the bar and the bench.

The confrontation thus rises from LBA’s parochial interests to the provincial and then federal levels, pulling in political actors that find themselves locked in mortal combat. To this extent, what is happening in Lahore is a proxy war being fought for much greater stakes.

The irony is that this is a spin-off of what began as an avowed movement for the restoration of the judiciary and its independence. However, as I have noted elsewhere on several occasions, the movement, by its deterministic approach, failed entirely to contextualise itself and thus lost the broader perspective on how to fit into the larger battle for democracy. It thought that its momentum is both the necessary and sufficient condition for strengthening democracy. That was a mistake both at the conceptual and pragmatic levels. What we are witnessing now is the upshot of continuing confusion on that count.

Institutional function cannot be seen in a vacuum. It must respond to the interplay of multiple actors. Democracy itself, given both the state of the political parties and the continuing civilian-military imbalance, is a process that is yet to evolve a normative standard. To think that the judiciary can resolve that issue through recourse to narrow application of law and constitutionalism is fairly naive.

Expectedly, the judicialisation of politics has ended up politicising the judiciary without necessarily making the political parties genuflect to a legal-normative standard or, even, helping them to evolve a higher standard of political interaction that could be said to underpin democracy and its generally understood principles.

The lawyers have become abrasive, we say. Sure. But that is just a symptom of the disease and stressing it without reference to the bigger issue amounts to missing the forest for the trees. The lawyers are operating in the same environment where most think that law alone, without appreciating other complexities, can ensure the return to some kind of utopia.

If anything, this approach is making the actors involved break the law. We are steadily moving away from establishing any rules of the game rather than moving towards creating a normative standard acceptable to and accepted by everyone. If this continues, the normative standard for us would be the reverse of what we set out to establish in 2007. We will break the law in trying, futilely, to establish it.

That the legal profession may become the vanguard of such absurdity would be irony at its most ironic.



The writer is Contributing Editor, The Friday Times. He was a Ford Scholar at the University of Illinois at Urbana-Champaign and Visiting Fellow at the Brookings Institution’s Foreign Policy Studies Programme, Washington DC. The views are his own.

Published in The Express Tribune, October 4^th, 2010.