Matter of principle?

Legal eye
The writer is a lawyer based in Islamabad.
For the most part of our history ordinary folk have been suspicious of lawyers and complained about our lack of ethics. No landlord wants a lawyer as a tenant for he’ll abuse his understanding of the law and position as officer of the court to breach the lease agreement. No bank wishes to extend credit to a lawyer for similar reasons. For a moment there during the lawyers’ movement this country thought we were standing up for rule of law and democracy and against Musharraf’s despotism and consequently lawyers earned the respect of fellow citizens. The bonhomie didn’t last very long.
The practice of law is supposed to be a noble profession. As an officer of the court, a lawyer’s foremost allegiance is to the law and he is under an obligation to defend the interest of his client within the four corners of law. As a professional, a lawyer is not a mercenary who ought to sell his services to the devil for the right price. But even the vilest of criminals have a fundamental right to legal representation. And consequently it is not for one lawyer to judge another for who he represents and why. Repeat incidents of lawyers relying not on the merit of their argument but force and violence to make their point are indefensible.
Part of the blame for the highhandedness of black coats must rest with leaders of the bar, especially during the lawyers’ movement. While lawyers were galvanised as activists after March 2007, the leaders of the movement made no effort to drive home the points that street protests and other forms of agitation aimed at resisting the Musharraf regime were an aberration and not the norm. The nurturing of the flawed notion of lawyers being foot soldiers of the judiciary has only compounded the problem.
We have internalised a flawed sense of camaraderie that cultivates notions of honour completely oblivious to ethics, law and principles. Must a lawyer stand up for a fellow lawyer who indulges in conduct for which his licence ought to be revoked? Must a judge look out for a fellow judge or his kin even when he promises to be dispensing justice without considerations of fear or favour? Must a political worker find justifications for the conduct of his leader who is caught with his pants down in broad daylight? And must khakis shield fellow khakis against accountability by non-khakis?
General Musharraf has an inalienable right to constitutional due process. He has a right to be represented by attorneys of his choosing, who have a right to find every excuse under law to justify the actions that have resulted in charges against him. Hard cases test the fairness of a justice system and the ability of judges to rise above the fray. And cases such as that of Musharraf are hard not because the propositions of law involved are intricate, but because cases involving the powerful expose the gap between the law and its practice. In filling this gap the judge can neither be seen as settling scores nor submitting to the diktat of power.
This is easier said than done. Judges are social beings and it is only natural that their personal experiences and the socio-political environment in which they exist influence them. But if it at all seems that they are allowing such extraneous considerations to inform their judicial determinations, it is the integrity of the judicial system that suffers. The strongest arguments for both judicial activism and restraint are rooted in the justice system’s need to not only be impartial, but also to be perceived as such.
But judges make mistakes all the time. And the emphasis on rigorous due process is meant to ensure that the justice system’s ability to self-correct stays alive and well. Disagreeing with the decision of a judge is a routine matter: lawyers do so every time they file an appeal against a judicial decision. But to start questioning a judge’s integrity, or imputing malicious motives to explain the outcome of a decision, strikes at the heart of rule of law. The prohibition to impute motives to courts under contempt laws across the world is not to protect the vanity of judges or shelter them from accountability, but to protect rule of law.
There seems to have erupted a vicious SMS, email and social media campaign to tarnish the credibility of Justice Shaukat Siddiqui who rejected Musharraf’s bail application. It is no coincidence of course that the text messages and emails are being initiated and circulated with a vengeance by Musharraf’s fellow khakis. The campaign is built on two planks: one, Musharraf is being denied due process of the law; and two, the legal accountability of Musharraf is a right-wing conspiracy against a liberal dictator. Those standing for Musharraf’s due process rights are arguing that a lawyer who defended the due process rights of the Lal Masjid preacher has an inherent conflict of interest as a judge ruling on Musharraf’s bail.
Are all lawyers who opposed Musharraf’s subversion of the constitution in 1999 or 2007 then conflicted? What about those who oppose military intervention in politics or the doctrines of necessity and expediency? What about those who advocate the right of missing persons to protection of the law and due process? Judges are neither supposed to be devoid of a belief-system or ideology nor does their allegiance to a set of legal principles create a conflict of interest. Justice Shaukat Siddiqui would have had a conflict of interest had he heard the bail application of Maulvi Abdul Aziz, but not because he once represented Aziz who blames Musharraf for his ordeal.
The second argument against Justice Siddiqui is that he was an MMA candidate back in the 2002 elections. How is this relevant? Because upon it is built the fiction that the case against Musharraf is a right-wing conspiracy. Let’s jog our memories. Back in 2002 was Musharraf not in bed with religious parties to get the 17th Amendment approved? Was it not under his watch that religious parties garnered the maximum number of parliamentary seats in Pakistan’s history? Was it not under his command that even the pretension of the state’s writ in Fata melted away? Did he not allow the occupation of a children’s library by Lal Masjid vigilantes develop into a national crisis requiring military operation?
The khakis might be indignant at the sight of Musharraf being dragged before civilian courts. That has little to do with the abuse of his legal rights and much to do with the unfortunate sense of inviolability in relation to fellow civilians ingrained in the khaki mindset. The argument that the morale of the troops will suffer if a former army chief is held to account for his illegal actions itself highlights the need for introspection within the army.
Whether it is the East Pakistan debacle, our jihadi project, the unrest in Balochistan, the insurgency in Fata, or the growing might of militant factions within the state, khaki footprints can be traced around most of these problems confronting Pakistan. As we learn from our mistakes and struggle to build a new Pakistan, where the exercise of state authority in all realms – khaki and civilian – is subject to reason and accountability, there is need for humility and reflection across all state institutions. We need a credible and independent judiciary just as we need a strong and motivated army. Let us not make Musharraf’s accountability about dirty turf wars.
Email: sattar@post.harvard.edu