In an important decision, the Pakistan Bar Council announced on Monday that it would relax the boycott of superior courts of Pakistan. This decision formally endorses the PCO judges and their legitimacy although PBC urged that the struggle against their appointment and restoration of deposed judges would continue.
The strongest exception to this decision by far came from the province of NWFP, where the lawyers have rejected this decision and announced to continue with their boycott. It is pertinent to mention that following the suspension of Chief Justice Iftikhar Muhammad Chaudhry last year, NWFP proved itself to be the most vocal supporter of the lawyers' movement that developed over time and six judges including the Chief Justice Tariq Parvez refused to take oath under the newly administered PCO oath subsequent to the November 3 martial law imposed by the then General Musharraf. Following the widespread dissent felt in the province which was also shared by the Rawalpindi chapter of Lahore High Court Bar, the local High Court Bar Association, the decision has created fissures and created ripples in the community, dividing it in the process, which has long considered PBC to reflect their views and always endorsed its decision as to the mode and form of boycott announced by PBC in the past.
The lawyers' movement was a result of the conscious awakening of the lawyers in general and they had selflessly protested a fresh attack on the independence of the judiciary early last year which was considered apparent when former General Musharraf removed a man from his judicial office in a bid to gain some control of judicial institutions of this country, after successfully taming the parliament which was being dubbed as a rubber stamping body with nominal power and control over state affairs. This protest, which was joined by civil rights activists, quickly gained momentum in the middle of last year and soon it was being compared with the likes of the Pakistan movement. Headed by people like Aitzaz Ahsan, Ali Ahmad Kurd, Justice (r) Tariq Mahmood and Muneer Malik, it seemed like it was unstoppable unless it achieved its aims. After the restoration of the Chief Justice, it seemed somewhat that a major objective was achieved but following a 'cooling period' which Musharraf thought would allow the movement to loose its momentum, the lawyers were infuriated once more when the judiciary's composition was changed beyond recognition following the imposition of a martial law on November 3 last year. This resulted in another battle between the lawyers and those seeking to assert the status quo vis a vis the judiciary as it stood following PCO oaths and appointments of such judges to the superior courts of this country.
After a prolonged struggle, finally it seems that the cohesion and unity, which was the most potent weapon in the armory of lawyers has finally been abandoned, at a great cost to the objectives that this movement stood for. The lawyers were observing the boycott of PCO judges with an utmost moral conviction that the judges who had refused to take oath under PCO were still the rightful judges and their adamant refusal to participate in the legal proceedings before the PCO judges was a manifestation of that belief. All of this may change now.
Lawyers, unlike common citizens, are deemed to be the legal intellectuals of the society. Just like it is hard to imagine a legal system without the presence of judges who adjudicate matters ranging from private disputes to constitutional matters, such a system is incomplete without the presence of lawyers who assist the judges in such adjudication and without them the judiciary is nothing but a decapitated plant which does not see the light of the sun during its lifetime. During the times of Cornelius and Kaikus J, the quality of judgments reflected the high level of jurisprudential talent available at the time. However, generally speaking, as opposed to countries like UK, the balance of jurisprudential richness has largely tilted in favour of the legal fraternity in Pakistan. This is all the more so since the legal profession has far more potential for growth, economic success and social standing compared to the bench, whose standard has been declining over the years thanks to political appointments and an absence of a coherent system of judicial training as well as the huge backlog of cases which does not allow a judge to apply his mind for a sufficient period of time to a particular case.
In the background of this scenario, when the lawyers announced their outright rejection of martial law which saw the appointment of PCO judges, on the grounds of being an unconstitutional and an illegal act which threatened to abolish the independence of judiciary and reverse the effect of the reinstatement of the Chief Justice by a Supreme Court which was deemed to be far more impartial and abiding to the principles of judicial independence, their cries generated waves of sympathy amongst the ordinary citizens who were also beneficiaries of a pro active Supreme Court which had removed the obstacles of delay in human rights matters. With the support of the media, lawyers were able to explain the reasons for their protest and explained the importance of the Constitution to a common man. They explained to the public that in effect what they sought to achieve through the boycott was a total rejection of all acts which were designed to curtail judicial independence, which if successful, would erode the sanctity of judicial decisions as well as undermine the collective rights of individuals against the excesses of state authorities. Such was the massive support of the protests against the attempt of the former General Musharraf to tame the judiciary that had the policy of subversion and coercion not been applied by ways of mass arrests of leaders of the lawyers' movement and their activists alike, it was feared that the new status quo might not be sustainable over a period of time.
No doubt due to the nature of their protest of an outright boycott, lawyers and the people in general also suffered severe delay in seeking justice from a crippled judicial system where day to day hearings of cases stood at a minimum. Those who were seeking liberty through the infamous writ of habeas corpus suffered the most along with convicts who were appealing against either their conviction or their sentence or both.
With the passage of time, there must have been some increasing pressure from a segment of lawyers who felt disillusioned by the cause being served by the continued boycott since the restoration of judges was being ruled out by Musharraf and no end was in sight for them. However, a strong majority which had proactively engineered the success of the lawyers' movement and were present in all modes of protests including demonstrations, etc. were still in favour of a continued boycott unless a reinstatement materialized. Although the regime remained ignorant of the demands of such majority, it was still inconceivable that just like the judiciary was replaced by a friendly judiciary, such members of the legal profession could be replaced or an alternate to them could have been established by the regime so as to confer validity to such PCO judges. Unlike the judiciary whose composition was modified in the way that it was, it is inconceivable to replace the legal fraternity altogether and to replace them, save an absolute change in the legal system by way of replacing it by military tribunals, an idea which seems impracticable for the regime or it would have been seriously considered as an option in a country notorious for being the subject of experiments which are previously unheard of.
Such was the absolute resolute, courage and determination of these lawyers, that Dr. Tariq Hasan, a former head of Securities and Exchange Commission of Pakistan during Musharraf's tenure, suggested just a few days ago, the establishment of an alternate judicial system by the lawyers constituting judges who refused to take oath under PCO which he termed as the 'logical conclusion' of the lawyers' movement. Although such a suggestion was perhaps an over extension of the objectives of the lawyers' movement who sought reconciliation and reversal of Musharraf's actions rather than set up a parallel system which would defy the writ of the state-something which would lie outside present constitutional boundaries and parameters, such suggestions were only forthcoming in the wake of the sheer determination shown by the lawyers in a long and self-enduring struggle.
The call for ending the protest by PBC must be viewed in this context. Although PBC has called for the restoration of the judiciary notwithstanding its call to end a boycott, this is a somewhat self-contradictory demand. If one refuses to recognize a person as a judge but goes on to plead in a court of law in the same manner as if one were to appear ordinarily before a judge whom one recognizes as a legitimate judge, the distinction is confusing to say the least. It is pertinent to mention that it was this very reason that the boycott was being observed in the first place and this was how it ought to have been if the lawyers did in fact believe that the PCO judges were not judges at all. Whether the economic harm and danger posed to existing and prospective litigants outweighed the movement that lawyers stood for only time will tell. For now the decision has created a division between the lawyers which has not been witnessed since they started the movement for the restoration of the judiciary and constitutional supremacy in Pakistan early last year. It also allows critics to label the lawyers' movement a failed one and any prospective action in the same manner as observed in the past through a 'protest of boycott' would loose the importance in the light of this dangerous precedent which the lawyers have set for themselves which may be viewed as a surrender. Although questions surround the authority of the PBC to end the boycott, the damage has perhaps already been inflicted.
Perhaps the decision of PBC reaffirms the advice of close aids of Musharraf that sooner or later the protest would be unbearable for the lawyers and the only threat that had ignited a serious threat to Musharraf’s rule would self destroy itself with the passage of time. In the light of the decision of PBC the lawyers may loose a chance to prove what they have always claimed—they stand for principles no matter what the cost. Everything has a cost perhaps after all. Although allegations are in the pipeline over the buying of some cronies in the PBC by the establishment, no evidence is available to support this. If in the future, lawyers at the district and local level all over the country, continue with a boycott in defiance of the decision of PBC, it may become hard to rebut this assumption for members of PBC. It would be a crucial failure on their part to attempt to build a consensus before making such an important decision over a matter which is far greater than perhaps the lawyers would ever get a chance to be a part of and lift themselves in the eyes of the people in the way that they have managed to do so with such great success.
The strongest exception to this decision by far came from the province of NWFP, where the lawyers have rejected this decision and announced to continue with their boycott. It is pertinent to mention that following the suspension of Chief Justice Iftikhar Muhammad Chaudhry last year, NWFP proved itself to be the most vocal supporter of the lawyers' movement that developed over time and six judges including the Chief Justice Tariq Parvez refused to take oath under the newly administered PCO oath subsequent to the November 3 martial law imposed by the then General Musharraf. Following the widespread dissent felt in the province which was also shared by the Rawalpindi chapter of Lahore High Court Bar, the local High Court Bar Association, the decision has created fissures and created ripples in the community, dividing it in the process, which has long considered PBC to reflect their views and always endorsed its decision as to the mode and form of boycott announced by PBC in the past.
The lawyers' movement was a result of the conscious awakening of the lawyers in general and they had selflessly protested a fresh attack on the independence of the judiciary early last year which was considered apparent when former General Musharraf removed a man from his judicial office in a bid to gain some control of judicial institutions of this country, after successfully taming the parliament which was being dubbed as a rubber stamping body with nominal power and control over state affairs. This protest, which was joined by civil rights activists, quickly gained momentum in the middle of last year and soon it was being compared with the likes of the Pakistan movement. Headed by people like Aitzaz Ahsan, Ali Ahmad Kurd, Justice (r) Tariq Mahmood and Muneer Malik, it seemed like it was unstoppable unless it achieved its aims. After the restoration of the Chief Justice, it seemed somewhat that a major objective was achieved but following a 'cooling period' which Musharraf thought would allow the movement to loose its momentum, the lawyers were infuriated once more when the judiciary's composition was changed beyond recognition following the imposition of a martial law on November 3 last year. This resulted in another battle between the lawyers and those seeking to assert the status quo vis a vis the judiciary as it stood following PCO oaths and appointments of such judges to the superior courts of this country.
After a prolonged struggle, finally it seems that the cohesion and unity, which was the most potent weapon in the armory of lawyers has finally been abandoned, at a great cost to the objectives that this movement stood for. The lawyers were observing the boycott of PCO judges with an utmost moral conviction that the judges who had refused to take oath under PCO were still the rightful judges and their adamant refusal to participate in the legal proceedings before the PCO judges was a manifestation of that belief. All of this may change now.
Lawyers, unlike common citizens, are deemed to be the legal intellectuals of the society. Just like it is hard to imagine a legal system without the presence of judges who adjudicate matters ranging from private disputes to constitutional matters, such a system is incomplete without the presence of lawyers who assist the judges in such adjudication and without them the judiciary is nothing but a decapitated plant which does not see the light of the sun during its lifetime. During the times of Cornelius and Kaikus J, the quality of judgments reflected the high level of jurisprudential talent available at the time. However, generally speaking, as opposed to countries like UK, the balance of jurisprudential richness has largely tilted in favour of the legal fraternity in Pakistan. This is all the more so since the legal profession has far more potential for growth, economic success and social standing compared to the bench, whose standard has been declining over the years thanks to political appointments and an absence of a coherent system of judicial training as well as the huge backlog of cases which does not allow a judge to apply his mind for a sufficient period of time to a particular case.
In the background of this scenario, when the lawyers announced their outright rejection of martial law which saw the appointment of PCO judges, on the grounds of being an unconstitutional and an illegal act which threatened to abolish the independence of judiciary and reverse the effect of the reinstatement of the Chief Justice by a Supreme Court which was deemed to be far more impartial and abiding to the principles of judicial independence, their cries generated waves of sympathy amongst the ordinary citizens who were also beneficiaries of a pro active Supreme Court which had removed the obstacles of delay in human rights matters. With the support of the media, lawyers were able to explain the reasons for their protest and explained the importance of the Constitution to a common man. They explained to the public that in effect what they sought to achieve through the boycott was a total rejection of all acts which were designed to curtail judicial independence, which if successful, would erode the sanctity of judicial decisions as well as undermine the collective rights of individuals against the excesses of state authorities. Such was the massive support of the protests against the attempt of the former General Musharraf to tame the judiciary that had the policy of subversion and coercion not been applied by ways of mass arrests of leaders of the lawyers' movement and their activists alike, it was feared that the new status quo might not be sustainable over a period of time.
No doubt due to the nature of their protest of an outright boycott, lawyers and the people in general also suffered severe delay in seeking justice from a crippled judicial system where day to day hearings of cases stood at a minimum. Those who were seeking liberty through the infamous writ of habeas corpus suffered the most along with convicts who were appealing against either their conviction or their sentence or both.
With the passage of time, there must have been some increasing pressure from a segment of lawyers who felt disillusioned by the cause being served by the continued boycott since the restoration of judges was being ruled out by Musharraf and no end was in sight for them. However, a strong majority which had proactively engineered the success of the lawyers' movement and were present in all modes of protests including demonstrations, etc. were still in favour of a continued boycott unless a reinstatement materialized. Although the regime remained ignorant of the demands of such majority, it was still inconceivable that just like the judiciary was replaced by a friendly judiciary, such members of the legal profession could be replaced or an alternate to them could have been established by the regime so as to confer validity to such PCO judges. Unlike the judiciary whose composition was modified in the way that it was, it is inconceivable to replace the legal fraternity altogether and to replace them, save an absolute change in the legal system by way of replacing it by military tribunals, an idea which seems impracticable for the regime or it would have been seriously considered as an option in a country notorious for being the subject of experiments which are previously unheard of.
Such was the absolute resolute, courage and determination of these lawyers, that Dr. Tariq Hasan, a former head of Securities and Exchange Commission of Pakistan during Musharraf's tenure, suggested just a few days ago, the establishment of an alternate judicial system by the lawyers constituting judges who refused to take oath under PCO which he termed as the 'logical conclusion' of the lawyers' movement. Although such a suggestion was perhaps an over extension of the objectives of the lawyers' movement who sought reconciliation and reversal of Musharraf's actions rather than set up a parallel system which would defy the writ of the state-something which would lie outside present constitutional boundaries and parameters, such suggestions were only forthcoming in the wake of the sheer determination shown by the lawyers in a long and self-enduring struggle.
The call for ending the protest by PBC must be viewed in this context. Although PBC has called for the restoration of the judiciary notwithstanding its call to end a boycott, this is a somewhat self-contradictory demand. If one refuses to recognize a person as a judge but goes on to plead in a court of law in the same manner as if one were to appear ordinarily before a judge whom one recognizes as a legitimate judge, the distinction is confusing to say the least. It is pertinent to mention that it was this very reason that the boycott was being observed in the first place and this was how it ought to have been if the lawyers did in fact believe that the PCO judges were not judges at all. Whether the economic harm and danger posed to existing and prospective litigants outweighed the movement that lawyers stood for only time will tell. For now the decision has created a division between the lawyers which has not been witnessed since they started the movement for the restoration of the judiciary and constitutional supremacy in Pakistan early last year. It also allows critics to label the lawyers' movement a failed one and any prospective action in the same manner as observed in the past through a 'protest of boycott' would loose the importance in the light of this dangerous precedent which the lawyers have set for themselves which may be viewed as a surrender. Although questions surround the authority of the PBC to end the boycott, the damage has perhaps already been inflicted.
Perhaps the decision of PBC reaffirms the advice of close aids of Musharraf that sooner or later the protest would be unbearable for the lawyers and the only threat that had ignited a serious threat to Musharraf’s rule would self destroy itself with the passage of time. In the light of the decision of PBC the lawyers may loose a chance to prove what they have always claimed—they stand for principles no matter what the cost. Everything has a cost perhaps after all. Although allegations are in the pipeline over the buying of some cronies in the PBC by the establishment, no evidence is available to support this. If in the future, lawyers at the district and local level all over the country, continue with a boycott in defiance of the decision of PBC, it may become hard to rebut this assumption for members of PBC. It would be a crucial failure on their part to attempt to build a consensus before making such an important decision over a matter which is far greater than perhaps the lawyers would ever get a chance to be a part of and lift themselves in the eyes of the people in the way that they have managed to do so with such great success.
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