The fractured nexus
ON March 10, Chief Justice Iftikhar Muhammad Chaudhry, whilst addressing newly enrolled advocates of the Supreme Court in Islamabad, stated, that “the nexus between the bench and the bar is very strong and the mutual aim of both is administration of justice”.
Almost on cue, three separate incidents occurred in the following week, which put the chief justice’s statement to the test: judges of city and district courts in Malir in Karachi went on strike twice in three days and on the single intervening day, additional district and sessions judges in Lahore requested to be transferred elsewhere in the province, all due to the alleged highhandedness and pressure tactics, indeed physical violence, of the lawyers.
Evidently, the much-touted nexus between the bench and the bar was under considerable strain.
Although it is easy to blame lawyers for the present state of affairs it is not entirely accurate to do so.
The relationship between the bench and the bar had become increasingly skewed over time. Lawyers, especially in the lower tiers of the profession, had often found themselves at the mercy of judges inducted through the civil service rather than the legal profession or appointed for their political leanings rather than their acumen.
It was perceived that these judges neither understood nor were sympathetic to the demands of the profession. They did not think much of arriving in court without having read the files, keeping lawyers waiting and deciding cases arbitrarily.
It seemed as though, with some notable exceptions, their aim was not the administration of justice but the appeasement of those to whom they felt they owed their positions.
It was therefore somewhat surprising that in 2007 these disgruntled and frustrated lawyers came out in droves to uphold the cause of the independence of judiciary.
Whilst some of them must certainly have been motivated by ideals it is equally likely that others recognised independence of judiciary as an appropriate platform from which to dislodge Gen Musharraf’s government, at the behest of their political
Whatever its driving factors, the movement had the negative effect of bringing lawyers out of the courtrooms, onto the streets and giving them a taste of raw power. It also gave bar councils the excuse to enrol new lawyers without proper scrutiny of their
credentials merely to swell their ranks.
Most importantly, the movement had the impact of tipping the balance of power away from the judiciary in favour of lawyers, which is where it presently remains.
However, no matter how much they may have desired it, lawyers alone could not have maintained their newfound position in the aftermath of the movement, had other factors not bolstered them in doing so.
The architects of the movement had no mechanism in place to support lawyers who had in the course of the movement, lost their already limited practices or to weed out rogue elements that had perhaps been deliberately allowed to creep into the
profession during that period.
Consequently, lawyers who now had a taste of power but no briefs and a section of them who had no skill other than their muscle and their connections jointly turned against judges especially when the latter tried to exert any control over them.
The bar councils, who are solely responsible for regulating lawyers, did not step in perhaps because to do so would be to lose their vote bank and they could not afford that risk.
Whilst it is true that the responsibility to manage lawyers is that of the bar councils and not of judges, it was disappointing to note the near absolute silence of the senior judiciary in the face of the widening gulf and increasing mistrust between the bench
and the bar.
Although the senior judiciary repeatedly maintained that the bench and the bar were two wheels of the chariot of justice, it
refrained from openly admonishing the lawyers’ behaviour, providing safeguards to the lower judiciary or even trying to understand the root causes of the situation.
Perhaps the senior judiciary felt beholden to lawyers for helping restore their positions, perhaps it felt that the situation called for a gentler more nurturing approach or perhaps still, it wished to rein in the executive and to resolve other pressing national
issues before it embarked on a crusade for the reform of the profession.
The government took advantage of this hesitation on the part of the bar councils and the judiciary. Increasingly beleaguered as it was by the growing assertiveness of the judiciary and still haunted by the memory of the collective street power of lawyers, it decided to provide support to lawyers and thereby to win them over to its side.
In June 2010, the then law minister Babar Awan, chartered a government plane to hurriedly distribute funds amongst lawyers ahead of the Supreme Court Bar Association Elections.
The results of this effort must have been satisfactory to the government: lawyers, disillusioned, abandoned and still poor despite their efforts, became easily divided and perhaps those who benefited from the largesse of the government, redoubled their efforts to keep the judiciary under pressure.
The long-term solution to this multi-layered conundrum is merit, clearly defined and rigorously enforced not for lawyers alone,
but also for judges. A well-educated and trained lawyer who enters the profession only after the most careful scrutiny is unlikely to unnecessarily complicate his cases or to resort to corruption especially if he faces a judge who is impartial, skilled and honest in his dealings.
In the short-term, however, the only hope lies in the bench and the bar recognising that they need each other, if not for the high ideals of justice then for their very own survival and in realising this, taking a firm and united stand against any misconduct
within their ranks.
If the bench and the bar decide to safeguard their collective integrity, no government, no matter how deep its coffers, would be able to divide them. It only remains to be seen who will take the first step to resolution.
The writer is a barrister.