ONE would need more than 10 fingers to count the number of lawyers who have governed Pakistan since its inception.
Our founder was a lawyer; our first prime minister a lawyer. Our former prime minister, sentenced to death by a court of law, was a lawyer. Others with law degrees have appeared in court, either as plaintiffs or as defendants. And a few have applied their juridical talents to bending or subverting the law.
One would imagine that Pakistan is awash with lawyers. It has 160,000 plus registered lawyers (98,000 in Punjab alone). In fact, we are not the most litigious nation, by far. Israel is, with 694 lawyers per 100K of population. The US has 401 lawyers per 100K. The UK has 226 per 100K, with almost as many lawyers — 153,600 — as Pakistan, serving a far smaller population.
Yet, the British judicial system, despite its “efficient legal processes, rigorous legal education, and a focus on mediation and arbitration”, has a backlog of over 64,000 cases. Pakistan has 2.23 million cases waiting to be decided in all our courts. Of these, as of end December 2023, some 56,000 cases lay unresolved before the Supreme Court.
An eloquence of judges degenerated into a quarrel of judges.
Anyone commenting on our judicial practices is fearful of being summoned for contempt of court. The unarguable truth today is that many perceive the courts themselves as rebuffing the system of impartial justice they took an oath to uphold.
It would not be unfair to assess the tenure of three recent chief justices of our Supreme Court.
Former CJP Saqib Nisar (2016-19) began by having himself photographed in full robes and wig in his family parlour, surrounded by relatives. During his tenure, his judicial overreach knew no bounds — visits to the Punjab Institute of Mental Health and an obsession with Lahore’s graveyards. He thought nothing of summoning senior law-abiding citizens to his court to pay him court. His connivance with Musharraf’s regime in ousting Nawaz Sharif from the prime ministership in 2017 is a less memorable residue of his legacy.
A later successor CJP Umar Ata Bandial (2022-23) gave hope when, in his early days, he made an avowed commitment to clear the backlog of cases that were obstructing the flow of justice. “In his first month as CJP, the Supreme Court decided a record 1,761 cases.” Soon, however, he too succumbed, like some fragile submersible, to external pressures.
Some parties accused him of bias, others of inaction. His suo motu action regarding the delay in polls in KP and Punjab in 2023 made him more enemies than friends — as if he did not have enough of the former within his colleagues on the bench.
CJP Qazi Isa (2023-24), during his swearing in, kept his wife by his side, to compensate for the humiliation she had suffered at the hands of their detractors. Many applauded when he opened the sittings of the Supreme Court to television. He wanted the public to see justice being done. Others feared that such exposure would draw the Supreme Court into the glare of reality. They proved to be right. Like royalty after the intrusion of television into their private lives, the gossamer mystique evaporated, exposing their human frailties.
Television coverage of the Supreme Court hearings became another soap opera. Almost from the outset, the schisms amongst their lordships became apparent. They used the SC courtroom to ventilate their opinions, not their learning. An eloquence of judges degenerated into a quarrel of judges.
To paraphrase Walter Bagehot’s observation about parliament, the Supreme Court proved that it, too, “like every other sort of sovereign, has peculiar feelings, peculiar prejudices, peculiar interests; and it may pursue these in opposition to the desires, and even in opposition to the wellbeing of the nation”.
The 26th Amendment to our Constitution, conceived in spite and delivered in haste, has destroyed that sovereignty, the once vaunted independence of our judiciary. Judges are now at the mercy of parliament.
The third pillar providing judicial checks and balances in our system has crumbled. The scales of justice have tilted in favour of legislative anarchy.
And for two superseded SC judges, the reward of a lifetime of dedication, hard work and public service has been reduced to naught by an arbitrary constitutional amendment. The novelist W. Gaddis once warned: “You get justice in the next world; in this world, you have the law.”
Parliament has bulldozed an unjust law. Future parliaments would do well to heed Bagehot’s advice. Their function is “not to win power by awing mankind, but to use power in governing mankind”.
The writer is an author.
Published in Dawn, October 31st, 2024
Dear visitor, the comments section is undergoing an overhaul and will return soon.