The rule of mafias | Babar Sattar

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Legal eye

The legal fraternity has now begun indulging in self-cannibalism. Last week a few dozen lawyers showed up at the Lahore High Court in solidarity with a member of the Pakistan Bar Council (our apex regulator of ethics and professional conduct), named as suspect in a petition filed by a 70-year old woman looking for her daughter (and the daughter’s baby) who has been missing since the end of 2016. During the hearing, the muscle men let out a stream of expletives against the indomitable Asma Jehangir, the petitioner’s counsel. While she wasn’t in court that day, her younger colleague was roughed up within the courtroom along within the frail petitioner.

We have begun eating the flesh of our own. But is this astounding? This is natural regression in our slide down the cesspool: we have made a habit of beating up policemen, district judges, media personnel and petitioners at will. Top honchos of the legal fraternity are deemed part of Pakistan’s professional elite. But we have never been held in high esteem by society (except probably for a brief moment after the lawyers’ movement where we were seen as fighting to uphold constitutionalism and rule of law). Truth be told, we are a nuisance no one wishes to deal with.

Landlords don’t rent us properties, as we abuse court processes to renege on commitments made through rent agreements. Banks don’t issue us credit cards, having classified ours as a negative profession. (Let us not even mention our ranking on matrimonial charts). We’ve had an old tradition (still projected as venerable) that lawyers don’t accept briefs against fellow lawyers. We believe ourselves to be officers of the court, raising lofty slogans about rule of law, access to justice and rights of even those accused of heinous crimes (rapists, terrorists). These are good principles, but not if they are to be applied to us.

But is there something particularly wrong with us anymore than with the rest of society? What we manifest is a sense of entitlement, exceptionalism, and loyalty and honour nurtured and reinforced in our polity for the benefit of its elites. If a military officer or MNA can’t be issued a ticket by a traffic warden, shouldn’t black coats gang up against a warden who dares to issue one of us a ticket? Shouldn’t we be meted exceptional treatment within the realm of the thana-kachehri that we dominate? Shouldn’t loyalty to our tribe (esprit de corps?) override a petitioner’s right to counsel or access to justice when it involves one of us?

Why our entitlement and exceptionalism is particularly invidious is because we (lawyers and judges) claim to be patrons, proponents and advocates of rule of law within the polity. When we put iniquitous ethos into play, the chasm between the law and its practice becomes too stark and the hypocrisy embedded in our system screams out loud. Why should the average Joe not view the justice system as a loathsome beast? The incident involving the Pakistan Bar Council member and the reaction of the bar and the bench highlight why our criminal justice system smells of rot and why there has been no focus on stemming it.

Let’s start with access to justice. Rule of law is meant to give effect to the promise of legal equality. But social and economic inequality within society directly translates into legal inequality within the justice system. If you must bring along your muscle power, if only to function as an equaliser within the system, why bother with a justice system at all? If there can only be a fair hearing if both parties to a conflict assemble their respective hordes outside a court, can we claim that disputes are being resolved through a neutral adjudication system based on laws, rules and principles?

Habeas corpus, the oldest of writs, is sought when a petitioner feels he/she needs the weight of the court behind him/her to seek production of someone who is detained illegally. If the vulnerable were able to assemble gangs to neutralise the power of their tormentors, wouldn’t they be fine even with the law of the jungle in place? The fight between the powerful and the prey is no fight. It is a hunt. And if to get his story heard in court the onus is on the victim to neutralise the might of the predator to enable the court to ‘do justice’ between them, what value is the court adding to this equation?

The sycophancy and servility that is on display in an unequal society is equally on display within our courts. When you bow before a court, you literally bow before the judge. If you cross a judge while making an argument or exhibit the audacity to critique the administrative or judicial orders of superior courts, along come instant reminders of the court’s contempt power. It doesn’t often take too much for our courts to feel offended or scandalised. But should the court not take offence when obstruction of justice is thrown in its face?

If the contempt law is not meant to protect the person or ego of the judge, as has been laid down by our courts repeatedly, but to ensure that the streams of justice flow uninterrupted without considerations of fear or favour, why is this power reluctantly exercised against the powerful who are using all means to obstruct justice? Or when court orders remain unimplemented for years, but readily when a judge takes offence to personal criticism or lack of due deference? What is the purpose of Article 204 and the contempt law if a judge is loath to exercise it in the face of a petitioner and her counsel being abused and roughed up in his court?

A few years back, during the hearing of a case before the Lahore High Court, the president of the High Court Bar Association straddled in with colleagues in tow and ‘advised’ the judge in open court to call off proceedings since a strike was being observed. The judge took no offence, stated that he was going to rise in any event and retired to his chambers, adjourning the case mid-argument. (One measure of the success of the term of a bar president is his ability to ensure that strikes are observed). Walking back to his office, the bar president conceded that he wasn’t personally in favour of strikes but couldn’t resist pressure from other lawyers.

You speak to judges and they concede that bar associations regulating courts is offensive to rule of law. But that it is inexpedient to pick fights with lawyers’ reps. The LHC Bar president who was enforcing strikes a few years back is now an LHC judge, and the judge who was asked to retire to his chambers now an SC judge. The disease that started with rowdy lawyers harassing district court judges into submission in the face of bars, and superior courts staying mum (in the name of expediency), is now a cancer spread all over. Exhibiting power to bear on courts is an evolving norm and fistfights are moving up the hierarchy of courts.

A cynical bystander can be forgiven for assuming that our justice system is a big charade and the only benefit of it going through the motions on a daily basis is that it keeps our pretence of civility alive. Many ask why there is no reform within the justice sector despite acceptance all around that it is broken. Some say it is due to the lack of will to reform. They say they haven’t seen leaders of the bar or the bench rolling out a structured plan to institutionalise reforms within the justice system. Those who allege we lack the will to reform are wrong. We have made a solemn resolve to reform everyone except our tribe and ourselves.

The writer is a lawyer based in Islamabad.

Email: sattar@post.harvard.edu