The Writ is Up For Grabs

The Writ is Up For Grabs

When state gets into the habit of surrendering its writ, several claimants begin to emerge from within itself. Chunk by chunk the writ is torn apart while segments, groups and forces keep bits and pieces for themselves; each according to its power and influence. What happened at the Punjab Institute of Cardiology on the 11th of this month had been brewing for long and it was still not the final product. There is more to come.

When a military dictator attempted to oust the head of Pakistan’s judiciary in 2007, the country reacted and a movement for the independence of judiciary began. Political parties, lawyers, civil society and media joined hands in resisting a move that may not have been unconstitutional per se but was a colorful exercise of authority aimed at tightening the proverbial noose around the judiciary’s neck and keeping it “under control”.

Lawyers became the most vibrant participants of this movement. Despite being arrested, beaten, burnt, tear-gassed and baton-charged, their resolve only grew stronger and within two years the Chief Justice was restored to his rightful place while the dictator had to pack his bags and leave. The movement that began for an independent judiciary and against dictatorship became a move for restoration of one particular judge and the ouster of one particular dictator. Thus, the apparent success of the movement could not translate into an independent judiciary nor could cause dictatorship to breathe its last. As a byproduct of the movement, however, the lawyers’ community gained substantial clout emerging as a united and organized segment of society, prepared to stand up and fight for the rule of law and became a force to be reckoned with. This was immense power and with it obviously came immense responsibility.

How then in the ten years from 2009 to 2019 did we fall from standing our ground against a dictator – for causes as noble as democracy, rule of law and an independent judiciary – to attacking a hospital, destroying public property and harming innocent civilians for something as petty as our ego?

The answer to this question does not lie only in the gradual inflation of our egos or a growing false sense of superiority. The instances of abuse meted out to police personnel, citizens, judges and even members of our own community grew more frequent with little or no accountability. Instead of using our acquired influence over society for strengthening constitutional and democratic values, we began to use it for personal gains, favors and political gimmickry. Inductions into the profession became less driven by a passion for litigation and more for power of the black coat, the ability to get away with traffic violations, the privilege of not being stopped at pickets and the luxury of slapping or kicking anyone on the road with absolute impunity. Courts, especially subordinate ones, had to address a new question while adjudicating upon matters before them. In addition to questions of law and fact they now had to address the question of numbers and influence in the bar. Strikes became the norm and the ability to appear on behalf of aggrieved litigants an exception. Some seniors of the bar continued to condone all of this rather than condemn it. Those who were looked up to for correcting the course were found conforming to it. Ideals like freedom of speech and expression were shunned. As a result, bar associations now act against members of their own community for holding a different opinion.

While all of this was happening within our fraternity, the state was surrendering its writ bit by bit to mobs and goons. Deals were being entered into with lawbreakers. Those exploiting religious sentiments for petty political gains were being given an open playing field. Doctors were being allowed to shut down emergencies and go on strikes. Accountability and retribution became dependent upon the accused individual’s or community’s place in society and the numbers that stood by them. Fundamental rights including the right to life and movement became the easiest to dispense with without any justification or process and by anyone who could gather enough bodies to block a road. The message was clear: the writ of the state was up for grabs.

There is more to come, not just from our fraternity but from any group that aspires to grab the larger chunk of power. There is definitely more to come unless the state decides to step in, not just with stopgap arrangements but with a concrete, long-term strategy to regain lost ground. The state needs to put its foot down. But first, the state needs to identify itself and establish once and for all where state power vests, for the writ needs a home to reside.

 

The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any other organization with which he might be associated.

Zafar Zulqarnain Sahi

The writer is a lawyer by profession. He is a Gold Medalist in LLB from Punjab University and has a LLM degree from University of Warwick, UK. He is also a former Member Provincial Assembly of Punjab (2008-2013).



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