A new chief justice

Legal eye

The president notified this week that Justice Saqib Nisar would assume office of the chief justice of Pakistan on Dec 31, 2016. Each new chief justice (we have had four in the last three years) is greeted with the hope that he might attend to the most urgent challenge facing this country: a broken justice system.

Pankhaj Mishra in his gripping essay in The Guardian (‘Welcome to the age of anger’, Dec 8) expounds the angst brewing across the world that explains the ‘seismic events’ of 2016. The rage he speaks of is blowing across Pakistan as well. Whoever rides this tiger is popular for the moment. Iftikhar Chaudhry’s court was populist and thus cathartic for ordinary people and he was a hero till the Arsalan Iftikhar scandal. After him the role went back to the military and Gen Raheel Sharif was our saviour.

The target of anti-establishment and anti-status quo anger is not just the political class but also our institutions. The military is able to insulate itself against this anger (when not running the country directly) partly because it effectively drives home the point that legal responsibility and authority lies with civilian institutions and partly because of its inherent institutional strengths: in its interface with ordinary people during national emergencies and elections etc, the military comes across as a very efficient institution.

Ordinary people don’t view the military high command as part of our power elite, but do see judges as its part. Our judicial history, like our military history, is chequered (to put it politely). But unlike the military that comes across as a well-oiled performing machine in the public domain, any brush with the justice system makes it screamingly obvious that our court system simply doesn’t work for ordinary people. If you are caught on the wrong side of the system, all one can say is, may God be with you.

The structural inefficiencies within the justice system are such that the promise of legal equality remains unfulfilled and the scales of justice are tipped in favour of those with power and money. One can write books on how delay, complacency and incompetence drain the life out of those embroiled in litigation (thankfully, there is no writing tradition within our legal fraternity). People rightly chide lawyers and judges for being part of the problem. To be honest, the appetite for reform within our fraternity is simply non-existent.

Court watchers understand, for example, that Justice Asif Khosa’s bench is clearing the backlog and feverishly deciding criminal appeals pending for years. But that is not news. The news is those two individuals ultimately found not guilty by the SC in a murder case had already been hanged or that another few rotting in jail for over two decades were found not guilty. Can lives wrongfully taken by the state be brought back? Who will account for usurping the life and liberty of those confined to jail for a lifetime without cause?

The court system is in such state of disrepair that individual hardworking judges aren’t enough anymore. The argument that the court system is failing because the executive and legislature aren’t doing their jobs has few buyers. Continuing dysfunction is robbing our courts of the moral authority they need to protect and enforce rule of law. The general consensus is that lawyers and judges have an after-us-the-deluge attitude, as they know that the system as it exists today isn’t sustainable.

We have seen two models of judicial administration. The business-as-usual model: a new CJ takes over, makes promising speeches at first, then settles down to bask in the ‘glory’ that comes with the office, takes keen interest in who to appoint as judges and who not to confirm, and walks into the sunset. Iftikhar Chaudhry gave us the justice-as-catharsis model: use Court No. 1 as bully pulpit, create headlines, take up populist issues and create consequences not by producing jurisprudence or fixing the system but by clever court management.

The first model is the natural choice for most who rise through the ranks and get acclimatised to the disfunctionality and apathy that defines our legal system. In the process of climbing up the echelons they get robbed of their idealism and the desire to be change agents. Being ‘elevated’ to the office of judge is seen more as an end-of-professional-life reward to enjoy perks and protocol rather than a responsibility and opportunity to inject honesty, fairness and capacity within the system. This model entrenches the status quo.

The problem with the populism-driven catharsis model is that it heightens expectations before frustrating them. The inefficiencies within the justice system are structural, organisational and ethical. You can’t fix the ethical part without simultaneously undertaking structural and organisational reform. The SC can become an exhaust for public frustrations under this model for a while, make headlines and win over the media, but it can’t deliver justice (that possesses the required quantity of fairness) without getting its house in order.

Structural and institutional reform is unsexy. It entails requiring peers to accept change and lose entrenched bad habits. The dividends of effective reform come years later. Leaders who suffer the need to be liked or be popular can’t institute reform. Judges don’t need to care about the political consequences of their decisions when they are part of a justice system that enjoys widespread respect and credibility. Judges sitting atop a festering system are much more constrained.

Justice Saqib Nisar assumes the highest judicial office with a solid reputation of being one of the brightest legal minds we have. His contribution to developing our constitutional jurisprudence and his ability to take firm positions in hard cases is well known. But assuming the mantle of CJ in this ‘age of anger’ is no walk in the park. Will he sow seeds of reform that might blossom long after his time or will he remain focused on personal legacy? Will his actions speak or will it be his words?

Since the 18th Amendment and the new system of judges appointing judges, judicial appointments have become even more controversial. Every set of appointments comes along with allegations of nepotism. Will this change? Over the last year we have heard much about judicial accountability. The Supreme Judicial Council has been brought back to life, but seems to be plagued by the delays that mire our court system. Why should references be held up like a sword of Damocles over the heads of accused judges instead of being decided?

On the structural side why do we have a fractured system of tribunals and appeals? Why can’t we evolve a three-tier trial and appeal system with realistic but efficient timeframes that actually work? Why can’t we think through the lifecycle of cases, revise procedure codes to simplify them, exclude technicalities that we spend most of our professional lives fighting over and create consequences for delay and frivolous litigation so that our courts resemble a dispute resolution system and not a tool in the hands of power elites?

Why do our district judges not seem well qualified to be elevated to high courts after spending a lifetime in judicial service? If the army can induct officers from every nook and cranny and train and groom them to be polished generals, why is our judiciary failing to train its own? Why is there an absolute lack of focus on ethics within our court system? When was the last time someone was punished for perjury? Are judges not aware of the growing chasm between judicial outcomes and demands of justice?

As Justice Saqib Nisar gets ready to assume the office of CJ, let us hope he will develop a ‘reform model’ without which our justice system might fall apart, and that his tenure won’t be as unremarkable as that of his predecessor.

The writer is a lawyer based in Islamabad.

Email: sattar@post.harvard.edu