Angry impotence - BABAR SATTAR

FIRST YouTube was banned. Now it’s late night telephone packages. What is next? Music, for it gives the impressionable all kinds of crazy ideas about love and idealism? Poetry, which incites the emotions of the young if it is of the romantic variety, or worse still, encourages dissent and revolt against the status quo if it is the serious stuff written by Faiz or Faraz?

Why not ban critical speech and writing altogether, being mischief that can scandalise revered institutions, individuals and traditions?

What kind of a state and society have we become where our response to criticism and demand for change is to put fetters on speech and thought? If you criticise the national security policy, the manner in which the army and the intelligence agencies conduct themselves or demand that generals be held accountable when found wanting, must you be seen as a paid foreign agent undermining the last institution of stability holding Pakistan together?

If you criticise the conduct of judges or their decisions, must you fear being seen as scandalising the court, settling a personal grudge or having sold yourself out? Is the concept of an honestly held critical view incomprehensible? Are you not told as a youth struggling to understand the truth about your religion that deference to God mandates that you don’t ask too many questions? If you are a rabble-rouser, are you not counselled that our religion requires that those in authority be obeyed and that arguing with elders, even logically, is disrespectful?

What kind of values are we fostering in this society when we prefer deference to independence, acquiescence to difference of opinion, conformity to intellectual rigour and challenge, regression to new ideas, personal loyalty to considerations of merit, flattery to excellence? What will be the character of leaders groomed in an environment where discretion is the better part of valour, honour is a product of success, and success demands that you hedge risks as opposed to standing up to fight for principle?

Is it surprising that we don’t find inventors, poets, philosophers and artists blossoming in this culture of intimidation, fear and intellectual stagnation? If we condemn new ideas as sources of mischief on our dinner table instead of debating their pros and cons and emphasising to our kids the need to strike the right balance between tradition and change, and society continues to reinforce the same message during academic and professional life, will thought-leaders emerge out of nowhere?

Emily Bronte wrote Wuthering Heights when she was 29. Jane Austen was 21 when she completed the manuscript of First Impressions, later revised and published as Pride and Prejudice. Frank Kafka was 29 when he wrote The Judgement. Shakespeare was not 30 when he wrote Comedy of Errors.

One can go through the list of some of the greatest inventors and find a similar age pattern. Most of the creativity that has changed this world and made it a better place has been a product of younger, imaginative minds unadulterated by fear, tradition and notions of expediency.

There is general consensus that our institutions and our society are in a state of decline. If in doubt, read the judgements authored back in the 1960s and ‘70s and then those being written today, compare the file notes penned by bureaucrats in the past with the contemporary ones, contrast the culture projected in biographies of retired soldiers with that prevalent today.

Exceptions aside, this is no false reverence for the past. The quality of our education and our character have degenerated and we are intent on leaving no space for new ideas, dissenting voices and reform.

The freedoms of information, thought and expression are intertwined rights that nourish the soul and the conscience. Victor Hugo had said that “nothing is as powerful as an idea whose time has come”. What about the interregnum between the floating of an idea and its becoming powerful? Is this not why the right to free speech aims to protect both popular and unpopular speech?

In 1896 the US Supreme Court condoned racial segregation in Plessy v. Ferguson under the doctrine of ‘separate but equal’. In 1954 the same court outlawed it in the celebrated case of Brown v. Board of Education. How did the legal and moral concepts of equality and its application undergo a transformation in a 60-year period? PCO was not a pejorative term back in 2000. But in 2009 our society vindicated those who were criticising it from the very beginning. Should early critics of PCO judges have been locked up for scandalising the judiciary?

That criticism and change can be unpleasant is understandable. But they are imperative for the health and progress of a society and must be accommodated. The moral panic created by the technological revolution we are witnessing in this age of information is not unique to Pakistan, but has confused the West as well. It is just that our response to challenges posed by modernity and change has been to shun them altogether and pledge to ride camels and write letters and live the way first Muslims did 1,400 years back.

Our older generation watched porn in magazines, ours did so through videos and the younger generation has the internet. Porn will not die out nor will the initial curiosity of the youth. Banning magazines altogether was not a solution yesterday, and shutting the internet is not the answer today. Even though the medium might have changed, the need to supervise kids, reason with them and groom them hasn’t. But none of this makes the state suddenly responsible for guarding the moral virtue of all adult citizens.

And if we have decided as a state and society that rotten traditions must be perpetuated, criticism and change must be penalised, and law must be used to inject reverence and morality into the ordinary Pakistani, let’s forget about YouTube, grow beards, and join hands with the Taliban. We probably have more in common than we realise.

The writer is a lawyer.

sattar@post.harvard.edu

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No cloistered virtue - Babar Sattar

CHIEF Justice Iftikhar Chaudhry’s long-drawn-out term is winding down and in a few months we will have a new chief. While we have had one chief justice for the last eight-and-a-half years, we might see up to seven in the next eight-and-a-half.

Now that we have an independent and fiercely assertive Supreme Court, it might be a propitious time to evaluate the independence of the individual judge in view of the administrative functions of the office of chief justice that gravely impact the administration of justice by the apex court and the judiciary as a whole.

It is now settled that an essential component of judicial independence is the ability of a judge to rule without being influenced by peers, including the chief justice. Critics assert that lack of independence of the individual judge is evident in the near absence of dissent in our judicial verdicts. Can our national propensity to flatter the powerful explain this trend? Sociological inclinations notwithstanding, the prime reasons for entrenchment of the misconceived concept of chief justice being pater familias (owner of the family estate) are structural.

Lord Acton asserted that, “liberty consists in the division of power; absolutism, in concentration of power”. The civilised world through a process of trial and error has now learnt that the best defence against abuse of power is distributing it widely and making its exercise transparent and accountable by subjecting it to an institutional system of checks and balances. We have unfortunately not applied this wisdom when it comes to the chief justice’s office.

The framework of rules, procedures and traditions that enables a chief justice to establish dominion over judicial offices across Pakistan is neither in sync with our constitutional structure nor with best institutional practices. The judiciary is no army for which unity of command is a functional necessity. The chief justice ought to be the first among equals and no more. But concentration of administrative functions in the office of chief justice is such that it can transform any incumbent into an autarch with significant ability to influence judicial outcomes.

We have a federal constitutional structure that endows each high court with the power to superintend and control courts subordinate to it. The Supreme Court is vested with no supervisory jurisdiction over high courts or district courts. Other than its extraordinary Article 184(3) powers, it is only meant to exercise appellate jurisdiction in matters decided by high courts. Unfortunately, over the last two decades we have seen judicial power getting bloated at the top and ineffectual at the district level where ordinary folk interact with courts.

The authority of the chief justice as chairman of the Judicial Commission, chairman of the Law Commission and chairman of the National Judicial (Policy Making) Committee, and the manner of its exercise, seems to be transforming our federal judicial structure into a unitary one. Is excessive use of Article 184(3) jurisdiction by the Supreme Court under Chief Justice Chaudhry’s watch doing to the relevance of High Courts what liberal exercise of writ jurisdiction in the 1990s by the high courts did to the potency of district courts?

Exercise of authority under Article 184(3), especially on suo motu basis, exemplifies the lack of transparency in exercise of administrative functions by the office of the chief justice. While the Constitution vests Article 184(3) powers in the Supreme Court, the administrative procedure employed for its exercise has converted it into the chief justice’s power. There are no objective criteria to determine which of the innumerable matters of public importance involving fundamental rights ought to be taken up by the Supreme Court in its original jurisdiction, especially of its own volition.

There are no objective criteria to determine how benches are to be constituted, how many judges will comprise a bench, what will their composition be, and which cases are to be fixed before each bench. During the last months of chief justice Sajjad Ali Shah the size of the bench headed by him that heard all consequential matters began to shrink. The tradition of dispatching judges out of favour with a chief justice away from the principal seat to hear decades-old appeals as sanction is well known, as is the practice of reconstituting benches midweek should a chief justice so desire.

The 18th Amendment introduced a detailed procedure to make the judicial appointment process deliberative, transparent and vigorous, while giving the Judicial Commission the power to regulate its own procedure. And what did the commission do? It made a rule stating that only the chief justice can nominate candidates for the consideration of the commission.

In other words through this procedural rule the chief justice has been given an absolute veto over all superior judiciary appointments across high courts as well as to the Supreme Court. His overarching authority within the Judicial Commission also gives him considerable ability to determine whether to elevate a high court judge to the Supreme Court or retain him as a high court chief justice and for how long.

The obligation to act in a fair and transparent manner imposed by law on all public office holders and enforced by the judiciary, applies with equal vigour, if not more, to the office of the chief justice. We need to introduce efficient and transparent case and court management systems in the Supreme Court and high courts to replace the existing system of unaccountable discretion of the chief justices.

“Justice is not a cloistered virtue,” Lord Atkin had observed back in 1936. As we approach a change of guard at the Supreme Court we must seek wider distribution of the administrative powers of chief justices amongst senior-most judges of the court to oust arbitrariness in the administration of justice and strengthen the independence of the individual judge. It is not the fame and power of a chief justice, but the integrity, efficiency and effectiveness of the ordinary magistrate that is the gauge of a functional justice system

Writer: Babar Sattar
Source: http://www.dawn.com

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