Jun 112008

Here I am again, raising trivial, irrelevant and academic matters on this important day, instead of joining hands with those who know best, outside Parliament in Islamabad, flexing their muscles
Think what you will — and, in particular, regardless of what some of their leaders keep telling us — the lawyers’ movement is essentially political in nature.

Of course, because politics is largely about perceptions, good politics requires you cloak your cause in high sounding moral principle, the better to sell it to the public. But, I take it, DT readers have enough nous to understand that the focus of the movement is not so much to usher in a new era of justice for the people, based on an incorruptible judiciary, as it is to see the back of a reviled President.

And, there is more. In true Pakistani style, it will not do to simply achieve that result, either indirectly or incrementally. No. Ghairat and Izzat are always at stake. As with Shylock, without the pound of flesh represented by the humiliation of a vanquishing retribution, the spirit of revenge will not be appeased.

In doing so, we surely can relieve ourselves of any possible angst by hiding behind the neutral sounding phrase, ‘setting an example for the future’; but who does not know that, in reality, what is in play is our intoxication with that primeval feeling of power associated with ‘teaching people a lesson’. Will any humiliation not be well deserved? Has not the arrogance displayed by this President been truly monumental by any standard?

I think of that saying, ‘to err is human; to forgive divine’ and reflect on how seldom we apply that lofty dictum of all religions (including our own) in our lives. In practice, errors are what others make; and, to forgive is not divine but bovine.

“I cannot tell what you and other men think of this life; but, for my single self, I had as lief not be as to live to be in awe of such a thing as myself” said Cassius. Such consuming hatred!

Yes, I understand that such existential problems do not have a uniquely satisfactory solution: that any decision will be messy to some extent or the other, and the ultimate choice made by any individual will reflect his particular conditioning, outlook, and life experience. And the options encompass a spectrum, from ‘the turning the other cheek’ at one end to ‘the principle of an eye for an eye’ at the other.

Therefore, all I will do here is to give my opinion to readers, without trying to justify it. Personally, I say — for all his sins — find suitable and civilised ways to keep the President under pressure (to ensure his stubborn mindset accepts the new realities) but give the man room and time for a graceful and voluntary exit. The country has many better things to do.

And there is no need to recount here what those tasks might be. But, given that the drama surrounding the judiciary is the current popular pre-occupation, I may as well use the rest of this column to focus on at least two neglected aspects of the many crises that bedevil our judicial system that I believe really need the urgent attention of the legal fraternity as a cohesive and organised force for change.

The first of these issues is the ambitious ‘Access to Justice Programme’ (AJP), launched with much fanfare by the previous government in 2001 with a cheap $350 million loan from the ADB, that seems to have floundered and lost its way long ago, much as most of our development programmes.

It was supposed to finance an ambitious and wide ranging structural reform package to provide justice to the vulnerable sections of our society. Here is a project that the Bar Associations, in conjunction with the Bench and government (a true private-public partnership), can really sink their teeth into.

And who will deny that the reform of the lower judiciary — from the perspective of the common man — is of greater importance than the workings of a higher judiciary that at least functions tolerably?

Let the legal fraternity, as a whole, demonstrate the same energy they have brought to their agitation, in getting to serious grips with scandalous issues such as the thousands of under-trial prisoners (whose cases drag on endlessly, sometimes even beyond the duration of their maximum possible sentence); the problems associated with getting bail; the need to deal firmly with essentially frivolous litigation; and the quick and efficient dispatch of those cases that involve only petty or minor offences but help clog up the system. Why are such issues left entirely to the government but the restoration of the CJ demand nothing less than ‘direct action’?

The other aspect is this: have you noticed how it is the government that is proposing a ‘constitutional package’ while the legal fraternity is content to simply comment on it, accepting provisions or rejecting them, as they see fit? Now any half-literate person knows how badly mauled and tattered our constitution is, and how many of its provisions are unrealistic, unworkable, and even unconscionable.

Should it not be the collective responsibility of the legal community, through its finest minds, to itself continuously review the constitution, and advise and press the government of the day to consider making the necessary amendments?

Should not the legal fraternity — through, say, public interest litigation — raise its collective voice against, for example, the cynical abuse of the provision that allows essentially temporary legislation through an ordinance? Yes. There is much real professional work that needs to be done available to the fraternity, should they only choose to focus on themselves rather than others.

For, there are some serious and fundamental questions related even to the higher judiciary that demand a serious public debate. For example, there is the issue of how they should be selected, and the terms and conditions of their service.

Personally, I see little merit in assigning limits to tenure or fixing a retirement age. These days, a person of 68 is still usually healthy in mind and body. To forego that experience, learning and wisdom (assuming the original choice was a good one) seems to me to be both unnecessary and foolish. Should the bar for compulsory retirement not be placed higher at, say, 70, 72 or even 75?

And then there is the question of emoluments and other terms of service. Should they not be substantial and attractive enough so that the best available talent from the bar would consider a long career on the bench eminently worthwhile?

Silly me. Here I am again, raising trivial, irrelevant and academic matters on this important day, instead of joining hands with those who know best, outside Parliament in Islamabad, flexing their muscles (and vocal chords). Luckily, I have better things to do in Morocco.

The writer is a businessman

Source: Daily Times, 11/6/2008

 Posted by at 9:56 am

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