Hope as justice

2016-07-09T22:56:37+05:00 Saad Rasool

The elevation of Justice Mansoor Ali Shah, as Chief Justice of the honourable Lahore High Court (LHC), is a story of unrelenting hope in the land of despair. It holds tremendous promise for the project of justice, especially in the province of Punjab. And much like all stories of hope, Justice Shah’s elevation marks an incredulous triumph of the extraordinary against entrenched forces of status quo.

In the same breath, however, it is precisely this idea – of being a threat to the forces of status quo – that is likely present the greatest challenge to Justice Shah’s legacy as the Chief Justice.

To put this in perspective: Justice Shah, ever since his elevation to the bench in 2009, has been viewed as judge extraordinaire. And for good reason too. Widely regarded as one of the most erudite and learned individuals, this Cambridge-educated judge soon developed a reputation for being fiercely independent in his decision-making. Even as a junior judge at the LHC, he seemed intrepid in his conduct and decisions, scripting a fresh brand of jurisprudence that is bold as well as brilliant.

But that is only the half of it. Even away from judicial temperament and acumen, Justice Shah is perhaps the most enterprising judge that the honourable Lahore High Court has seen in recent years. His initiatives in terms of the Case Management System, introduction of technology for management of judicial processes, improvements in the Punjab Judicial Academy, transparent recruitment of judicial officers, and a proactive system of oversight for the functioning of district judiciary, have been unprecedented. Even those who oppose him as a judge (and there are many!) cannot deny his impetus and desire to bring about meaningful improvements in the justice system.

Within this backdrop, naturally, impossible hopes have been associated with Justice Shah for his tenure as the Chief Justice; hopes that cannot, necessarily, be fulfilled in entirety. It is being claimed (by some) that all of Punjab’s judicial woes – at the district as well as the High Court level – will somehow miraculously disappear through one swish of Justice Shah’s magic wand (read: gavel).

Justice Shah will have to resist being swept away by this dangerous (savior) narrative, and yet find a meaningful way to fulfill (most of) the hopes that have been associated with his new office.

In terms of introducing judicial reform, especially at the lowers courts level, the new Chief Justice is a veteran. He, perhaps more than anyone else in the honourable Lahore High Court, understands the plethora of issues that plague our district judiciary, and its (disruptive) bar culture. Over the past few years, mostly at the behest of Justice Shah, numerous reforms have been introduced for an overhauling of the district judiciary, through introduction of technology and judicial training, with varying degrees of success.

Going forward, in this regard, what the new Chief Justice would need (above all) is the support of respective bar associations for implantation of his ideas and programs. And this might entail a swallowing of (unwarranted) pride on part of bar council leadership. No technology or judicial training program can help fulfill the dream of a truly transparent, efficient and effective district judiciary, till such time that it is accompanied by a corresponding demolition of the personal fiefdoms of local bar members, who will have to forego the ability to delay cases at whim, intimidate judges into granting relief, and influence the outcome of judicial process through the brute force of bar-membership. And for this, the new Chief Justice will not only need the help of senior bar members, but will also have to confront (even challenge) the entrenched strongholds of bar politics.

At the High Court level, there is a working Case Management System. However, we must be honest in accepting that it is far from perfect. While technological innovations are only part of the necessary improvement, what mars the credibility of an automated case management system is the ad hoc manner in which some of the cases are selected for ‘nomination by the Chief Justice’, before the same can be heard. In layman’s terms, while majority of the cases in the LHC are dispassionately allocated through a computerized system, a select few are presented to the honourable CJ, who assigns the same to judges of his/her choice. And, for now, no one really know what precisely is the trigger for a case to be sent for nomination, and no way of knowing why the honourable CJ marked the said case to a particular judge. In the absence of transparent procedures surrounding ‘nomination cases’, there is a sense in the bar that past CJs have deliberately marked controversial/important cases to judges of their choice, thus influencing the outcome of the decision.

This is not to say that the Chief Justice should not have the power to nominate cases; just that the process surrounding such nomination should be made transparent.

Away from procedural reforms, as CJ, Justice Shah must make efforts to unshackle the culture of a conformist/conservative judiciary, thus breathing audacity into the arc of our jurisprudence. Justice Shah, more than any other judge, appreciates the virtue and valor of expanding the empire of our judicially enforced fundamental rights. Through personal experience, much of it recently, Justice Shah also understands that a judge is frequently targeted, even maligned, by forces of status quo, when he/she attempts to challenge the entrenched power structures of our democracy. And, as a result, majority of our judges have learnt the lesson to adjudicate cases as conventionally as possible. To not disturb the precarious balance of our governance. To embody nothing unorthodox. Nothing extraordinary.

This culture of judicial tepidness must come to an end under the leadership of Justice Shah, who has himself never ascribed to this stifling philosophy. Taking a page from countries like South Africa, our honourable Judges at the High Court level must embrace the full measure of our constitutional guarantees, especially in terms of Fundamental Rights – in the confidence that the Chief will have their back in the event of adversity.

Justice Shah’s elevation must also be seen through the prism of the larger judicial restructuring that is afoot by the end of this calendar year: individuals of prodigious abilities, Justice Saqib Nisar and Justice Asif Khosa (both of whom were robbed of their rightful tenures at the helm of LHC, by Iftikhar Chaudhary) will take center stage, one after the other, at the honourable Supreme Court. And, almost simultaneously, Justice Yahyah Afridi is likely to be at the helm of the Peshawar High Court.

This alignment of the stars, which has never happened before in our judicial history, must be seen as an unprecedented opportunity to introduce and implement far-reaching judicial reforms across (the majority) of Pakistan.

We may not see this kind of congregation again. Chief Justice Shah must kick-off, in Lahore, a reform process that finds momentum in other provinces and with the leadership-in-waiting at the honourable Supreme Court. Moments, such as these, hold the promise to define the destiny of nations. This is no time for half-steps. This is no time to think of temporary solutions. This is a time to dream of a permanent judicial revolution.

The writer is a lawyer based in Lahore. He has a Masters in Constitutional Law from Harvard Law School.

saad@post.harvard.edu

@Ch_SaadRasool

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