Judicial Taliban

Lawyers have emerged as a great force in Pakistan who carries weight in the future law making and day to day running of the judiciary as well as executive in the country. Pakistan’s short history is full of lawyer’s contributions and in particular judges who never bow before a dictator to take oath under any PCO and preferred to go home honourably.

In any adversarial system, there is a lawyer for and against and a judge hears the case, decides on facts and law giving confidence to both parties on the ‘judgement’ he is about to give on its merits. On the day, a judge has to dispense justice, and of course justice needs to be seen to be done, and if judgement is known in advance, it does not meet the norms of justice. Recent events in Pakistan post liberation of judiciary has given an impression as if lawyers have a carte blanche and as if they are not willing to tolerate the other side view, I hope I am wrong. That is, and it will be dangerous for the promotion of tolerance, rule of law and good governance leading to true democracy as there is always the other side view and the story.

I have picked up two issues where there is a risk of miscarriage of justice and potential threat of the other party loosing chance of ever having a fair trial. In the case of 4 May 2007 lawyers procession in Sahiwal, in Punjab, which was intercepted by Police on orders of its superiors. A case has been registered against district police officer and others, but open alarming statements are being made by top judicial leadership for accelerating the process by doing a quick justice with warnings that someone else will do the job suo moto. No lawyer is willing to represent the said officer in the whole of District Multan before Anti terrorist court judge, which is an undesirable development for the profession as any accused is ‘innocent until proven guilty.

2nd episode is of the sessions court judge whose transfer history was a matter of concern for the administrative head of judiciary. However whilst declaring at a public procession to ‘sort him out’ he forgot that those challenges will rule out of him ever having a fair hearing in any future appeal which is against the basic spirit of justice. If the top judge is against someone, who will give relief in the entire state if one considers oneself innocent.

Judges speak through their judgements is a wise man’s word and I can only present that as a ‘free gift’ to one for whose freedom even I lodged a petition (sc/15/2007) challenging Gen Musharraf’s decision early April 2007. Even I fear for a speech and contempt. These developments are alarming as victorious bow before their God and learn to teach something for which our generations can be proud of. They are never for vengeance but for a purpose & progress for its people. They too do make mistakes and their peers guide them as they did when they visited for condolences to then ‘President in waiting’ who was under trial.

There are a lot of issues worth the attention of Superior judiciary instead, for example digging out the case of Z A Bhuttoo whose death is still a mystery, shall we say a ‘judicial murder’ or to some a ‘blunder ’ which needs resolving to start with. Then we have a military coup of 12 October 99, or 3rd of November 07 imposition of a shorter one in emergency both of whom were legalised by Superior Court under Zafar Ali Shah & Iqbal Tikka Khan Cases, both needs a quick review. We have Nawaz Sharif’s deportation in violation of Supreme Court judgement on 10 Sept 2007 which remains unresolved.

PCO judges and their allegedly unlawful oath require judicial scrutiny. Above all, 5th April 07 burning of the lawyers alive in their chambers at Karachi, and 12th May massacre which is still fresh in human mind requires judicial enquiry, if there can be one. And above all the killing of Akbar Bugti in August 2006 on which suo moto was sought by me & Benazir, a daughter of East who sadly was made to part with us on 27 December 07 requires ‘justice’ as these are tragic events which are shouting out loud for the top judge’s attention. That’s not me, the whole nation concur with me on this point. These unresolved little mysteries are still terrorising our short memories and are apt matters for the higher judiciary not the transfer posting of lower ranking officers which can be dealt with locally.

Article 6 of the European Convention on Human Rights 1950 guarantees the basic human rights during arrest and trial and that requirement is the core essence for which lawyer around the globe fight to preserve these values and even fought for justice for the detained ‘chief justice of Pakistan’ and later stood against the ‘dictator’, not for a man to get his job, but our courts to get sanctity. If tomorrow Gen. Musharraf is asked to face the trial, and we do not change our attitude either, who will guarantee that he will have a fair hearing, which if not guaranteed may ruin the whole struggle for free judiciary. He must have a trial but a must have fair one is the question.

I am representing some of those students who are being removed on ‘national security’ grounds but no one in UK ever raised an issue with my representations as to whether those detained should have a lawyer or not as they are branded ‘terrorists’. Its all because, those detained have a right to a fair hearing. In my practice in Britain, advocates exchange views, fight their cases tooth and nail and during breaks or in the end often have a cordial discussion with each other . They always show respect to the other side lawyer(s) and at all times address them as ‘learned friends’. In fact, there is truly a culture of tolerance, acceptance of each other’s views and accepting defeat in the end. As both sides acknowledge that they are performing their professional duties.

However, the lawyers in Pakistan have paid a heavy price for this movement and must not let this victory slip away their hands easily. If they wish to keep the democratic rule in the country, they must pin their hopes on their nation, the people and its representatives. Now that judiciary is on its course of freedom, we must leave them to it, and lawyers must be ready with their road map on crucial topics such as appointment of judges via non political /unbiased commission, non controversial non political ethical future lawyers who in the end become judges, politics free bar, training of lawyers and judges, accountability & financial autonomy of top judiciary including their protection and true separation of administration from judiciary.

These are the questions which as an overseas Pakistani lawyer I can think of to start with for our bench and bar. These issues ought to be considered by main stream political parties for the real changes in the way justice is administered in the country. The independence of the whole institution is the aim and it must not be linked with ‘winning one case’ or ‘restoring one judge’ with which judiciary does not attain true independence as man is mortal, and institution stays.

Nexus of our judges with Generals so far in the past in Pakistan hindered democratic flow and process and the struggle must be for strengthening the institutions. If system is strong enough and is allowed to run at its full capacity with free media and judiciary as monitors, it will automatically start chunking out leadership with brilliance as is the case in Britain, United States or even India.

New judicial police operative from 1 June will set the tone of the judiciary in coming days but executive needs to match their words with actions too. Free and independent judiciary does not come with slogans, tireless work is required where difference of saying and doings will have to be eliminated to achieve greater goal, only then, only then, and this dream will come true.

If not successful, then critics will argue as to what is the difference between those fighting with might to impose their version of Islam on majority to those who will impose their will through judgements in public domain other than in courts. People will struggle to differentiate and will declare them ‘judicial Talibaan.’ We must fight together to avoid such collusion course, where public loose trust even after winning.

Amjad Malik is a Solicitor-Advocate of the Supreme Court of England & Wales and a chair of Association of Pakistani Lawyers (UK)