Just hope… Farrukh Khan Pitafi
“Which door would you choose? Blue — go to 15 years into the future with $50 million. Red — start your life anew at the age of 10 with all the knowledge you have now,” reads an internet meme. No one has seen the future. But if today is a bit off, tomorrow is bound to be wonkier. It stands to reason, then, to opt for a journey back in time with the knowledge of all mistakes you have ever made for a redo.
Sadly, no such redo door exists in real life. All we can do then is learn from past mistakes and never repeat them.
Sometimes, it feels like we have travelled a long way in our journey for judicial independence. At others, one thinks that our journey has solely been in time and we haven’t covered an inch in distance. To qualify the latter, all you have to do is open a book on constitutional and judicial history and see for yourself the debates at the very inception of the nation. What has changed? Hardly anything.
Justice Faez Isa’s elevation to the post of the country’s Chief Qazi has given birth to new hope. The Chief Justice of Pakistan has hit the ground running. Not only did he begin his tenure with a full court hearing, but in a historic first, the proceedings of the high-profile case were widely televised live. He has also consulted with the legal fraternity to chart a path forward to clear the massive backlog of cases. But could all of this be for real? For a nation accustomed to drinking sand from mirages, it isn’t easy to tell water from sand. We have had false dawns before. In this country’s politics, too, we have seen this distinct pattern that a new ruler starts off with a lot of promise and hope only to be dragged down by the mediocrities of the system. And politicians usually have five years of elected rule. The honourable Chief Justice has only one.
There is no gainsaying that the country’s judicial history has been disconcerting since day one. However, if you want an origin story for our current judicial woes, I have an answer for you. It all dates back to the lawyers’ movement. I am not saying that things were hunky-dory before that, far from it. The 1997 crisis had all the seeds of discord. But tribalism on display in those days was of a different, if incoherent, kind. Before the lawyers’ movement, only juntas and ambitious politicians sought to divide the judiciary. Dictators through provisional constitutional orders (PCOs — my way or the highway) and politicians through inducements (presidency and other lofty positions).
However, the day supporting Iftikhar Chaudhry became an article of faith among the lawyers and media community, the demonisation of judges on the other side of the divide took on a life of its own. PCO judges and Dogar court became common pejoratives. Amnesia played its tricks, and we forgot that Chaudhry and his allies on the bench had also taken oath under Musharraf’s first PCO.
Judging by what he had to offer after his restoration and the scandals that surrounded him, it was a poor tradeoff. As an embattled General Musharraf dug in the system’s toxicity rose to the breaking point, and some of the worst lingering crises date back to that time.
But that is not all. When you can wish away dissenting judges, when you think you are too popular and you have the intellectual depth of a tablespoon, you can abuse the system in every which way. There was no dissenting voice left on the bench. Iftikhar Chaudhry weaponised 184(3) and turned the system on its head. Pendency grew. Instead of abolishing centres of privilege, the lawyers’ movement created another centre of privilege — the legal fraternity. Since then, the country has found the judiciary sacking one elected prime minister per decade.
Given that this decade hasn’t concluded yet, the number can always go up. And don’t forget the humongous mistakes made in the cases like Reko Diq that have cost the country dearly. And yet, to believe that the judiciary stepped out of the establishment’s shadow under Justice Chaudhry is to kid yourself. Remember his crackdown on lawmakers with alleged fake degrees, which almost became a national crisis. The whole thing vanished without a trace the day General Kayani got an extension. One media group inhaled its propaganda and started believing if it could bring Musharraf down (as if..), it could take on the country’s powerful establishment. We all paid dearly because of that fateful miscalculation.
Let’s face it. Iftikhar Chaudhry was our Iraq war. We lost the moral high ground we had acquired fighting against the final days of a dictatorship. And we haven’t been the same again.
After this long detour, let us return to the original. Can Justice Isa do it? Can he reform the system, forge a broader coalition and clear Augean stables worth of backlog and that too in a limited period? The answer seems to lie in setting realistic goals and ending tribalism.
Unlike the fiction of Iftikhar Chaudhry’s persecution spun by the above-mentioned media group, Justice Isa’s was prolonged and real. We all witnessed it playing out before our eyes, and most of us were too cowardly to utter a word. After he returned to the bench, some of us found our tongues. You know how it is. When you have endured a lot and are still hurting, people tend to prey upon your suffering and want to drag you into their tribal wars. If that route is taken, all is assuredly lost.
Luckily, a better path still exists. That of inclusion, harmony and professionalism. It isn’t easy because there are no shortcuts. But it is the mark of a true leader that instead of eliminating, he takes the dissidents along and seeks to transform them by personal example. If the dissidents still remain churlish, it is their loss only. The only exception should be corrupt people with verifiable evidence against them. There, too, the presumption of innocence should be a given until proven guilty in a fair trial. We have wasted precious time fighting tribal wars. Nothing good ever comes out of them.
I am happy to observe that so far, the Chief Justice’s instincts have been spot on. Not only has he chosen the path of transparency (live coverage) and inclusion (full bench), but he has kept his eyes on the real prize (judicial efficiency and clearing of the vast backlog). If this trend persists, we may finally find a judiciary that genuinely works for the people. Now, isn’t it a dream worth having?
Courtesy The Express Tribune, September 23rd, 2023.