The rule of lawyers

You either die a hero, or you live long enough to see yourself become a villain. – Harvey Dent. (Fictional character, begins as a hero.)

We are told that the bar and bench are two wheels of the same chariot. Both the vehicle and the metaphor are fittingly outdated by a few hundred years. Why a chariot; why not a motorbike? It’s perhaps a better example, as there is an engine to balance between rather than forces to be pulled ahead by. But chariot it is – because the judicial system of Pakistan is still a congregation of tribes, pulled along by many varying forces, yet to see a uniformity of force application, known as rule of law, within itself.

The entire debate on seniority versus merit that has raged over the past few months with regard to the superior judiciary must also be looked at from upon this chariot: that we are analysing a group of people, being the legal and judicial fraternity, to whom we accord a huge amount of propriety. And perhaps there is often less than what meets the eye.

There was a strike on Thursday August 26 in all the courts of Sindh, because a bunch of lawyers didn’t want to pay toll tax in Sukkur, where amidst a ruckus caused by this refusal, an altercation happened between them and the Rangers posted there. Eager to keep the tribe united on the elevation issue, the SHCBA responded to their protest. A strike was called because of the ‘mistreatment of lawyers by army personnel’ at the toll booth. It struck all the right cords, and the gates of the high court were chained shut for the next morning.

Later, after thousands of people returned home frustrated through their causes being sacrificed unwillingly at the altar of our justice system, news broke that the Sukkur lawyer crew had apologised for its behaviour. Further, they said that all parties to the conflagration were brothers who must all get along.

Another news story which followed highlighted how judges and lawyers are now exempt from toll tax payment. A tribal compromise was thus arrived at, the litigant with his/her day in court wasted being the frustrated tool which provided the means to a happy ending for the lawyers. The state, as is always the case in all these matters, was the obvious loser.

Right before this year’s summer break in the Sindh High Court, something unusual happened in a proceeding which started as a property dispute between private parties. It serves also to highlight the limits of our yearning for rule of law, and whether it’s all actually an attempt to mask our true cause: rule of lawyers.

In an order authored by a judge who later retired without ceremony this August, an allegation was recorded as having been made by one party’s advocate against the other’s: that he was receiving a pension from the Sindh High Court, having been a judge in the past, and yet was appearing before the same high court, whilst judges who retire in the normal course of service are prohibited from doing so.

The judge, wondering why such a facility is not available to himself once the sun sets upon his time upon the bench, which was admittedly soon, framed the question in constitutional terms.

The exact technicalities are best avoided here but in bare terms, after the upending of the judicial hierarchy by the PCO of 2000, members of the judiciary who had not succumbed to constitutional fraud and had not signed onto the chief executive’s order renewing their oaths to an illegal martial regime were accorded two categories: one who had served for five years on the bench until that point and another for those who had not.

Constitutional tinkering allowed for pensionary benefits to be availed by non-conforming judges who had until that point served for at least five years on the bench as if they had worked until their age of retirement. It also separately allowed for non-conformist judges who had not served for five years as judges until that martial law intervention to be able to practise as advocates in the superior courts including the court in which they had worked as a member of the judiciary, as if they had never served on the bench in the first place.

The problem was that the constitution barred anyone who had served as a judge of a particular high court in a permanent capacity, from practising in that high court or in any other court within its jurisdiction.

Hence, for judges who were permanent appointees but had not yet completed five years of service, the martial intervention would have acted as a double ouster: they would have been deprived of a means of sustenance through pensionary benefits whilst also being denied their right to practise as lawyers to earn their livelihood. To resolve this injustice, apparently too great for even those who trample our constitution to serve out, a ‘special permission’ was created by Musharraf for this unique class of jurist: they would be allowed to practise as advocates even in those high courts where they had previously been serving as judges.

Into this neat binary and single exception was planted the seed of democracy. By way of the 18th Amendment in 2011, all judges who had not taken the martial oath, regardless of their length of service on the date of intervention and not succumbed to the dictator's yoke were rewarded, for the purpose of pensionary benefits only, to have been deemed as having served also until their retirement.

This subcategory of practicing ex judges was now eligible for pensionary benefits from the same court in which they were plying their trade. Being a potential problem alone, this was left to the margins and disregarded.

Until these distinguished gentlemen decided to apply for their pensionary benefits, from the date they became eligible for them post the 18th Amendment in 2011, and the administrative side of the Sindh High Court as run by the chief justice allowed these applications and the tens of millions of rupees which flowed therefrom. These leaders of the resistance against martial law, this golden bracket of champions, now wanted to be paid for their past troubles by way of pensions whilst practicing as advocates where they were once judges too.

The retiring judge was, in the last few weeks of his service tenure, wondering why he himself couldn’t return to practice when these golden boys could. Why would he have to retire at 62, an age considered the judicial prime of members of the judiciary in other countries abroad, and content himself to sitting at home with a pension while these former heroes of the resistance were allowed to have their cake and eat it too? He framed a few questions, to see where the law actually stood. Were these specially gifted pensioners barred from having the best of both worlds, or perhaps he himself was not?

What followed was the stuff of tribal legend. The offices of two former attorneys general were engaged to combat this rogue retiring judge, and his audacity to question this peculiar situation. His first order framing the question was appealed and suspended. He then passed another order asking what exactly he had initially directed which could be thus suspended, further directing that the office place the case before the chief justice to formulate a bench to decide whether taking a pension from and then appearing before the same court is legal or otherwise. the second order was, independently and through a different appeal, again suspended. It was as if his sheer audacity to adjudicate such a matter was under challenge, and continuously being rejected through a confluence of power.

The troublesome judge retired without another bite at the bar cherry, applied for and received the allowance to practise everywhere other than the province he had served as justice of where he was relevant and advantaged. The same is of course fit and proper. For those outside the tribe.

Dead elephants can live on through the worth of ivory in their tusks, live horses are as good as dead the moment they injure a leg. Rule of law and our seniority principles must be seen within the same typeset: they are subjective.

Just a few days back, our Supreme Court’s own association of journalists preferred to withdraw their grievances regarding abductions and violations of fundamental rights placed before it, lest it do more harm than good. A greater alarm bell has surely never been rung. The entire collective of Pakistani bar associations have called for a pan-Pakistan strike. Not to protest the reasons which led to such a loss of faith by the courts’ own reporters, but to uphold seniority being the sole criteria to elevate judges to its benches when faced with the first female judge in the Supreme Court. It is as if we have made a national pastime out of missing the forest for the trees.

Meanwhile, so desperate am I to seem part of this tribe, I resolved to not work for the entire week. Involuntary idleness being the answer to every conceivable ill is also, after all, a national pastime.

The writer is a lawyer

Twitter: @jaferii