Judiciary

Technology for justice

Usama Khilji | October 14, 2019

The writer is director of Bolo Bhi, an advocacy forum for digital rights.

A TIMELY discussion titled Technology for Justice Forum recently took place in the capital, spearheading
a much-needed discussion on how technology could harness justice. A wide array of stakeholders from
across the justice and technology sectors, including senior judges, lawyers, civil society, technology
companies, technology experts, engineers, students, and investors attended.

The most important stakeholders in the justice system are the citizens, and ensuring that they have
access to justice is the most important challenge that needs to be overcome.In the Farishta kidnapping
and murder case in Islamabad, the father and brother were made to clean the police station when they
had gone to file a complaint about the child being missing. For women, accessing justice is all the more
challenging. Character shaming and incredulity are everyday challenges that discourage them from
approaching law enforcement. Bribery is another major challenge that citizens face when dealing with
the law-enforcement and justice system.

Perhaps technology can empower citizens to hold the law-enforcement system accountable.

The Punjab Model of Governance pioneered by bureaucrat Zubair Bhatti in Jhang functions on a simple
model whereby citizens who visit a government office for anything register their phone numbers and get
a call later to determine if they were asked for extra payment and if they are satisfied with the services
provided at the office.

At the forum, mobile phone applications that connect lawyers with citizens in search of a lawyer were
unveiled.

Another major issue that citizens in this country face is the inefficiency of state prosecutors and the
court system. Using technology for the attendance record of public prosecutors will go a long way, as
the absence of state prosecutors in cases that are cognisable and noncompoundable which requires the
state to be a party causes delays.
Digitisation of investigation files and court records is another important area. In a harassment case in
Karachi, the evidence file of a complainant went missing for more than two years due to the negligence
of the FIA, causing a critical delay in the progress of the case.

setting up of independent forensic laboratories for investigation of data is also very important.

The introduction of e-courts by the Supreme Court of Pakistan where cases can be heard via video link is
a welcome addition to the current setup where complainants and witnesses have to bear the cost of
travel and stay for hearings, something that otherwise deters them from using the justice system.
Similar arrangements for recording witness statements via video will also help the cause of justice.

The Prevention of Electronic Crimes Act, 2016, while protecting citizens, also makes it legal for citizens to
file criminal defamation complaints that often deter aggrieved parties from voicing complaints related to
harassment as Section 20 of Peca does, and Section 37 that empowers the Pakistan Telecommunication
Authority to block any content on the internet. The latest Islamabad High Court judgement asking the
authority to offer a hearing to administrators of the websites that are being blocked is a welcome step in
terms of due process enforcement. But the blocking of content is ineffective as the YouTube ban
demonstrated, and hence an exercise in futility. These sections need to go.

Lastly, it is high time for parliament to introduce a data protection and privacy law so that all the data
and information processed in the courts, investigation agencies, police, companies, and applications is
protected and not misused.

Lagging labour

Parvez Rahim | October 16, 2019

The writer is an industrial relations professional.

IN the aftermath of the devolution of labour laws, companies with factories and offices in only one
province are governed by the labour laws of that province, while those with establishments in more
than one province are termed trans-provincial organisations. Since the 18th Amendment was passed,
these organisations have resisted the application of provincial jurisdiction over them by claiming to fall
within the scope of the federation. The stand taken by such firms is strengthened by the fact that, soon
after devolution, the federal government promulgated the Industrial Relations Act (IRA), 2012. Its stated
purpose is to consolidate and rationalise the law relating to trade unions, and improve relations
between employers and workers in the federal capital and in trans-provincial firms and industries. Any
establishment, group of establishments or industry operating in more than one province is considered
‘trans-provincial’ under the law.

The act has been accepted in letter and spirit by employers and workers’ unions, and all its provisions
are implemented by the two stakeholders. There is one collective labour agreement applicable in trans-
provincial firms, decided between the collective bargaining agent union and the employer. The
referendum to elect the CBA union among more than one union was previously conducted by the trade
unions’ registrar in provincial labour departments. These are now organised by the National Industrial
Relations Commission (NIRC) in Islamabad, which also registers newly formed unions in trans-provincial
companies.

Federal labour laws are rapidly losing their utility.

IRA 2012 is the only law promulgated specifically for trans-provincial firms post devolution. Several
other important federal laws have neither been amended since 2010 nor formally extended to these
companies, such as the West Pakistan Industrial and Commercial Employment (Standing Orders)
Ordinance, 1968; Companies Profits (Workers’ Participation) Act, 1968; Minimum Wages for Unskilled
Workers Ordinance, 1969; Workmen’s Compensation Act, 1923; and West Pakistan Shops and
Establishments Ordinance, 1969.

Ironically, in some matters, trans-provincial firms began following provincial laws without hesitation. For
instance, the federal government fixed the minimum wage at Rs15,000 effective July 2017, for two years
until June 2019. The Sindh government increased it to Rs16,200 effective July 2018. Most of these
companies followed the latter minimum wage for their establishments in Sindh.

On the other hand, these firms scrupulously guard the quantum of leave allowed to workers and rigidly
maintain the status quo. For instance, under the Sindh Factories Act, 2015, compensation against sick
leave is at full pay for 16 days. But these companies continue to restrict compensation to half pay as per
the Factories Act, 1934.

There are number of other situations for which the provincial labour departments may have to be
empowered by the federal government, eg to carry out inspections. Besides, where should the workers
of such companies or their legal heirs lodge claims of compensation or non-payment of wages? In the
absence of federal institutions in provinces, these functions should be formally assigned to the
provincial commissioner for workers’ compensation, the prescribed authority under the Payment of
Wages Act, 1936. Thesevmatters should be resolved soon to avoid undue hardship to affected workers
or their heirs.

Matters of workers’ grievances and petitions against dismissal in such companies now fall under the
purview of the NIRC. Presently, there are hundreds of cases pending disposal before the few members
of the NIRC. Some of these cases are minor in nature and may be disposed of within one or two
hearings, but only if they are taken up. The delay is resulting in an inordinate injustice for workers.
Who is a workman?

- https://www.dawn.com/news/1512631?ref=whatsapp

Pervez Rahim

WHETHER or not a person employed in an industrial or a commercial establishment is a workman under

the law has remained one of the most controversial issues in courts of law for almost a century. Why?
Because a workman is covered and protected by the labour laws, and hence entitled to certain rights
and is eligible to receive various benefits and privileges guaranteed by the law. The same is not available
to employees, who do not fall within the workman category.

The most significant among these rights is the right to file a petition for reinstatement in a labour court
if a workman considers himself wrongfully dismissed from service by the employer. When I started
working in the field of industrial relations in early 1972, labour courts had to deal with several such cases
in which they had to determine the status of a petitioner. Once a person was defined as a workman, the
courts would proceed on the question of whether or not his dismissal was justified.

The West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, defines
a workman as “any person employed in any industrial or commercial establishment to do any skilled
or unskilled, manual or clerical work for hire or reward”. The courts at that time would not consider
watchmen or drivers as workmen as they were not seen to perform actual manual work. Hence the
doors of justice against unfair dismissals were shut for them.

Every labour law has its own definition of ‘workman’ or ‘employee’.

While defending the companies’ action in cases of dismissal from service, the employers’ lawyers mostly
challenge the petitioner’s status as ‘workman’ under the law in their preliminary objections. If the
objection is accepted, the matter is over and the courts do not go into the details of the case.
I encountered such a situation while working at a state enterprise at Kot Lakhpat, Lahore. One of the
company’s car drivers was rude and quarrelsome and would misbehave with everyone. He was
dismissed. He filed a petition for reinstatement before the junior labour court, which was supposed to
provide speedy justice to aggrieved workmen and give its decision within seven days. Such courts were
established by the first PPP government but did not last long as they would often flout the short
deadline for the closure of cases.

In this case, I raised the preliminary objection that the petitioner being a car driver was not a workman
under the law as he did not perform any manual labour. The court upheld my plea and dismissed the
driver’s petition.

In 1973, the section regarding the filing of a grievance petition with the employer and then with the
court if the petition was rejected by the former was shifted from the ordinance of 1968 to the Industrial
Relations Ordinance, 1969. This ordinance considered everyone a workman except those employed in a
managerial or an administrative capacity. Consequently, the argument concerning car drivers not being
considered workmen was no longer sustainable and the issue was settled. By virtue of a Supreme Court
judgement in 1996, watchmen also came to be considered as workmen.

It is ironical that there are numerous superior courts’ judgements in Pakistan and India that hold pilots
as workmen despite their lucrative emoluments and perquisites.

In one case, it was held that if any employee claims he is a workman, the burden of proof falls on him to
produce documentary or oral evidence in support of his contention. If his duties do not involve work of a
manual nature but, instead, require the application of his mind or supervising work done by others, then
the employee cannot be held to be a workman.

Every labour law has its own definition of ‘workman’ or ‘employee’, which makes the persons falling
within this category eligible to receive the benefits provided under that enactment. In some of the
labour laws, the eligibility of persons falling under the definition of ‘workman’ or ‘employee’ is
determined through a fixed wage ceiling, while in others it is based upon the nature of work performed
by the individual.
For instance, the Provincial Employees’ Social Security Acts, have been made applicable to employees
drawing a monthly salary of up to Rs22,500 in Sindh and Rs22,000 in Punjab. On the other hand, the
Employees’ Old-Age Benefits Act is extended to all employees of a company except its directors.

People having a cursory knowledge of labour laws often ask why there can’t be one definition for
workman in all labour enactments. However, practitioners and consultants of these laws are of the
opinion that it becomes necessary to restrict the application of labour laws only to those employees
whom the legislatures wish to provide particular benefits or safeguards to. Therefore, in order to avail
the rights and privileges provided under labour laws, the claimant must first establish that he fits the
definition of ‘workman’.

The writer is an industrial relations professional.

Published in Dawn, October 24th, 2019

Labour woes

Editorial | October 26, 2019

THE ILO has launched its Better Work Programme in Pakistan for improving working conditions in the
textile industry and ensuring compliance with international labour laws to help local companies
compete globally. The programme will also help ensure that local textile companies provide a safe and
healthy environment for their workers and allow the strengthening of labour unions and workers’
organisations within the industry. Around 4.2m people are employed in the garments, textiles and
footwear sector, according to an ILO report for 2014-2015. The textile sector as a whole contributes
8.5pc to GDP and accounts for 70pc of total exports. However, according to Human Rights Watch, most
workers in Pakistan’s textile industry are unregulated or are not given written contracts and are forced
to work overtime in harsh conditions without being given adequate leave in case of sickness. Moreover,
they are routinely denied social security, wages and other benefits.

The report also highlighted the role of private textile companies in suppressing the activities of workers’
unions that campaign for employees’ rights and the government’s negligence in allowing these
companies to violate existing labour laws. Pakistan is a signatory to several international covenants on
workers’ rights and has a number of laws in place for their protection. However, the gaps in the laws
themselves and negligence with regard to their implementation have resulted in worsening conditions
for Pakistan’s largely unregulated labour force. It has also resulted in the pulling out of international
businesses, such as Walt Disney, which ceased doing business with Pakistan in 2014 on account of poor
working conditions. According to the Global Slavery Index report, 2018, Pakistan ranks third out of 167
countries in terms of having the highest number of victims of ‘modern slavery’ — 3.19m.

Even deadly incidents like Karachi’s Baldia factory fire have failed to result in greater protection for
millions of workers. Let’s hope that the BWP convinces both government and industrialists that progress
in trade cannot come without uplifting labour conditions in the country.

Published in Dawn, October 26th, 2019

Back in parliament

Editorial | October 16, 2019

THE formula has been reasserted. The Islamabad High Court’s call to parliament to come to a decision
regarding the appointment of two members to the Election Commission of Pakistan has underscored the
guiding principle on the resolution of political questions. The ruling came on Monday, with Islamabad
High Court Chief Justice Athar Minallah letting the government know that the route it adopted on the
matter was unconstitutional. He was hearing petitions against the federal government’s move to
appoint new ECP members from Sindh and Balochistan via an order by President Arif Alvi. Justice
Minallah refused to entertain a request by the government to stall the case until the Supreme Court
gave its judgement on the matter.

The controversy came to a head in August when the government notified the appointment of Khalid
Mehmood Siddiqui and Munir Ahmed Kakar as the two new ECP members. Bearing nomination from
President Arif Alvi, the two men arrived at the ECP offices, only to be spurned by the chief election
commissioner who termed their appointment unconstitutional. The Islamabad High Court has now ruled
that the ECP is too vital an institution to stay suspended. This means that while parliament’s right has
been respected, the lawmakers are in their turn expected to resolve the affair without wasting any more
time. Justice Minallah reposed his faith in the “august house” in an act that will hopefully boost
confidence in the abilities of the elected legislators.

This is an essential reminder for introspection in a country which is in the habit of blaming, distrusting
and maligning politicians, often without cause. There is a growing tendency to take all issues pertaining
to politicians in parliament as well as outside to court. In a land where controversial interventions, soft
coups and overthrows have been all too common, this propensity for legal arbitration has been likened
to the Pakistani habit of inviting the ‘apolitical’ security establishment to adjudicate on matters outside
its domain, earning the latter an undesirable reputation. Even today, instead of containment through
political engagement, preventing a political move through legal decree is spoken about, without any
apparent consideration for how debilitating that can be for the political system and those who operate
it, including parliament. Justice Athar Minallah is right. The trend has to be strongly discouraged.

Pending justice

Editorial | Updated October 26, 2019

THERE is widespread disbelief in the country over an antiterrorism court’s verdict in January’s shootout
case in Sahiwal. The government has decided to challenge the ruling which acquitted all six CTD officials
in the killing of four people.

While not a unique occurrence, no less than 27 of prosecution witnesses turned hostile, allowing the
accused relief. These witnesses were originally there to help prove the guilt of the accused police
officials in the killing of Muhammad Khalil, his wife Nabila, their teenage daughter and Zeeshan, a friend
of Khalil’s who was driving the car.

The Lahore-based family was on its way to a wedding when it came under a hail of bullets. In the
absence of any witnesses testifying against the accused, the ATC judge dismissed the possibility of
supportive evidence reinforcing the prosecution’s case. This included the footage showing images of the
car in which the victims were travelling along with three minor children who survived the attack. The
footage led to outrage across the country.

This was considered an open-and-shut case of an overzealous police force going mad with their chase
after a wrong tip-off. Even the prime minister and members of his cabinet promised exemplary
punishment for those responsible. However, there were also sceptics who warned that the proceedings
in court could lead the judge to draw conclusions contrary to the general perception. Those cynics have
been proved right, pending of course a government appeal against the verdict.

The Sahiwal verdict on Thursday was followed by a statement by Muhammad Khalil’s brother who
accepted the ruling and asked that the case not be used for any political motives. But if that was an
attempt to quickly end the matter, the government’s decision to challenge the decision, even if it had to
do so without support from the heirs of the victims, has thwarted the move. The case, the debate it
stirred, is still open, with its many dimensions about justice, privileges and necessities justified by
emergencies.

There have always been grave concerns about how easily the police get away with the gravest of
excesses but this is about a more privileged law-enforcement arm. The CTD is a force born of special
needs in the wake of the war against militancy, with special cover provided to its acts. But it must still be
held accountable for actions that take the life of the innocent.

Published in Dawn, October 26th, 2019

Eight ordinances promulgated

- https://www.dawn.com/news/1514132?ref=whatsapp

ISLAMABAD: President Dr Arif Alvi on Thursday promulgated eight ordinances which had already been
approved by the federal cabinet at its last meeting.

The promulgated ordinances are related to the judiciary and one specifically concerning about amending
the NAB Ordinance which could affect high-profile political prisoners in the country.

Law Minister Barrister Farogh Naseem and Special Assistant to the Prime Minister Dr Firdous Ashiq
Awan had recently blamed the opposition parties for compelling the government to opt for legislations
through ordinances.

The law minister had termed it a defining moment for Pakistan, saying that the cabinet which met under
Prime Minister Imran Khan had approved eight laws of “public interest”.
The promulgated ordinances included the Letter of Administration and Succession Certificates
Ordinance, 2019; the Enforcement of Women’s Property Rights Ordinance, 2019; the Benami
Transactions (Prohibition) (Amendment) Ordinance, 2019; the Superior Courts (Court Dress and Mode of
Address) Order (Repeal) Ordinance, 2019; the National Accountability (Amendment) Ordinance, 2019;
the Legal Aid and Justice Authority Ordinance, 2019 and the Whistle-Blowers Act.

The most significant ordinance which got the cabinet’s nod was the one seeking an amendment to the
National Accountability Ordinance under which those facing charges of corruption worth Rs50 million or
more would only be entitled to be kept in “C-Class” prisons.

The minister had refuted the impression that the said ordinance was person-specific and was being
introduced only to directly target the top leaders of the two opposition parties who were currently
under NAB custody.

The government believed that the Criminal Procedure Code would ensure speedy and expeditious
justice for the masses who had been enduring lawsuits in civil courts for years.

Under another ordinance, the government had provided protection to the whistleblowers who would
point out corruption in any department. Besides getting protection, the law minister said, the
whistleblowers would also get 20 per cent of the amount which would be recovered from culprits.

The Letter of Administration and Succession Certificates Ordinance provided a mechanism for issuance
of succession certificates by the National Database and Registration Authority. The Enforcement of
Women’s Property Rights Ordinance will guarantee right of ownership to women in inheritance. The bill
aims at preventing the family from denying this right to women through “coercion, fraud, fabrication,
forgery and cheating”.

The Legal Aid and Justice Authority Ordinance seeks establishment of a legal and institutional framework
to promote access to justice by providing affordable, accessible, sustainable, credible and accountable
legal aid, financial or other services to the poor and the vulnerable section of society in criminal matters.

The bill gives priority to disadvantaged women and children, especially in matters of sexual offences.
Published in Dawn, November 1st, 2019

Redefining terrorism

- https://tribune.com.pk/story/2090983/6-redefining-terrorism/?amp=1

Tribune Editorial

The Supreme Court has recommended that Parliament narrow the definition of ‘terrorism’ in existing
laws. Such a move would significantly reduce the number of cases that wind up in anti-terrorism courts
despite the offences having done little in the way of terrorising people. The court explains that many of
the offences do not qualify to be included in the definition of terrorism under the Anti-Terrorism Act and
put an extra burden on anti-terrorism courts, which delays trials of actual terrorism cases.

The judgment, authored by Chief Justice Asif Saeed Khosa, recommends that Parliament consider
substituting the present definition of ‘terrorism’ with a more succinct one, in line with the international
perspectives of the offence and focusing on violent activities aimed at achieving political, ideological or
religious objectives. The judgement also notes that there is an international consensus on the point that
the violence having no political, ideological or religious aims is “just an act of criminal delinquency, a
felony, or simply an act of insanity unrelated to terrorism”.

This is perhaps best illustrated by the high number of murder and kidnapping cases that have found
their way into anti-terrorism courts. Even parental kidnapping cases among divorced or separated
couples have moved into the system, even though the complainants and the police officials registering
FIRs are usually at a loss to explain their reasoning when asked about the insertion of the ATA clauses.
On the flip side, some people believe that the insertion of the said clauses guarantees swift justice and
fewer delays as compared to the ‘regular’ courts, which are also perceived as more corruptible.
The fact of the matter is that placing regular cases before anti-terrorism courts has actually corrupted
the courts. Evidence of this comes from the number of cases where severe penalties based on the
terrorism charges were handed down, only for them to be overturned by higher courts.

Published in The Express Tribune, November 1st, 2019.

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Habeas carcass

- https://www.dawn.com/news/1515767?ref=whatsapp

A.G Noorani

“LAW has reached its finest moments when it has freed men from the unlimited discretion of some
ruler, some civil or military official, some bureaucrat. Where discretion is absolute, man has always
suffered. At times it has been his property that has been invaded; at times his privacy; at times, his
liberty of movement; at times, his freedom of thought; at times, his life. Absolute discretion is a ruthless
master. It is more destructive of freedom than any of man’s other inventions,” US supreme court justice
William O. Douglas said in 1951. This is not true of this part of the world; certainly not of India. The
massive arrests in Kashmir included in their sweep not only the entire political class but also children.
The draconian Public Safety Act, 1978 was used to put 14-year-old boys in jail.

The writ of habeas corpus is guaranteed to every citizen as a fundamental right. It has been reduced to
habeas carcass thanks to the Indian supreme court’s refusal to provide relief to detainees in Kashmir. It
is depressing how the chief justice of India, Ranjan Gogoi, and a couple of his colleagues talk of ‘the
national interest’, while effectively postponing for long periods petitions for habeas corpus. On Aug 4,
there was no revolt in Kashmir; not even a procession. But having imposed on the people the very next
day a death sentence for Kashmir and its identity, the government of India and its stooge Governor
Satyapal Malik decided to lock up people to prevent peaceful protest. This is what the government
called ‘the national interest’ — a cry that the supreme court echoed.

Preventive detention was first introduced by the East India Company.

The time is come to consider the basics of the legal outrage of imprisonment without trial called
‘preventive detention’. It is now three centuries old. It was first introduced in India by the East India
Company by the Bengal State Prisoners Regulation 111 of 1818 through its governor general’s vice
president in council. It provided for the imposition of “personal restraint” and regular check-ups of the
health “and comfort” of the detainee, suitable provision “for his support” and that of “his own wants
and those of his family”. He received an “allowance”.

In 1918 came the report of the sedition committee headed by its president, justice S.A.T. Rowlatt, and
comprising two English and two European judges. The law based on this report was the hated Rowlatt
Act.

The committee unanimously recommended, apropos preventive detention, “...we think that … it must
be subject to the observance of … principles – (i) No interference with liberty must be penal in character.
Nothing in the nature of conviction can be admitted without trial in strict legal form. If in the supreme
interests of the community the liberty of individuals is taken away, an asylum must be provided a
different order from a jail. (ii) Any interference with liberty must be safeguarded by an inquiry which,
though circumstances exclude the possibility of its following forensic forms, must be judicial in the sense
that it must be fair and impartial and as adequate as it can be made.”

Lodging detainees in prison is infliction of punishment without trial. It is a violation of the right to
personal liberty and is patently unconstitutional.

Chapter III of the Indian Penal Code enacted in 1860 concerns punishments. Section 52 lists them. One
of them is imprisonment. But the laws authorising preventive detention routinely empower the state to
order that the detainee “be detained in such place and under such conditions, including conditions as to
maintenance, discipline and punishment for breaches of discipline, as the appropriate government may,
by general or special order”.

The place specified is, invariably, jail. This is imprisonment without trial and a violation of the
fundamental right of personal liberty (Article 21). Article 22 of India’s constitution provides for
preventive detention. The detainee is entitled to be given grounds of detention that are considered by
an advisory board, which can be packed with party hacks.

As early as 1950, justice Mehr Chand Mahajan of the supreme court pointed out that “preventive
detention laws are repugnant to democratic constitutions and they cannot be found to exist in any of
the democratic countries of the world”. In 1969, the court characterised the legislation as “a negation of
the rule of law, equality and liberty”. In 1979, the court said it “viewed with disfavour detention without
trial, whatever be the nature of offence. The detention of individuals without trial for any length of time,
howsoever short, is wholly inconsistent with the basic ideas of our government”. The supreme court
stopped using such language since.

The court has said repeatedly that preventive detention is not penal but preventive. Why lodge the
detainee in jail, then? In Northern Ireland, it was imposed on Aug 9, 1971 but was lifted on Dec 5, 1975.
Conditions were far, far worse there.

The writer is an author and a lawyer based in Mumbai.

Published in Dawn, November 9th, 2019

"CJ’s rejoinder" by Editorial

- https://www.dawn.com/news/1518178?ref=whatsapp

IMRAN Khan’s recent, ill-considered swipe against the judiciary, evidently triggered by what he
perceived as a disparity in the judicial system’s treatment of the elite and the rest of the citizenry that
allowed Nawaz Sharif to leave the country, has met with a firm response by the country’s top judge.
Chief Justice Asif Saeed Khosa, speaking at an event on Wednesday, said it was the government itself
that had permitted the former prime minister to proceed abroad. Clearly, the prime minister’s calling
upon the judiciary to ‘restore public confidence’ in its working irked Justice Khosa, who has made
judicial reforms the cornerstone of his tenure. To that end, at the same event, he also appreciated Mr
Khan’s stated intention of enhancing resources for the judiciary.

As the final arbiter of the law and guardian of fundamental rights, the judicial system has a critical role
to play in a nation’s trajectory. On that score, Pakistan’s judiciary admittedly has an uneven record. For
instance, less than a decade after partition, the judgement in the Maulvi Tamizuddin Khan case ratified
the governor general’s dismissal of the first constituent assembly. That fateful verdict gave birth to the
infamous ‘doctrine of necessity’ which has echoed through Pakistan’s turbulent history and hobbled
democracy time and again. Another stain on the judiciary’s record is the death sentence handed down
to Zulfikar Ali Bhutto, often denounced as a ‘judicial murder’ for being based on overt political
expediency rather than evidence. These are but two of several instances where our courts unfortunately
chose to be on the wrong side of history. Then again, more recently, the same institution has also
delivered landmark verdicts that have upheld the highest principles of humanity, such as the acquittal of
Aasia Bibi — that too in the face of a certain and violent backlash from the ultra right. The Faizabad
dharna judgement, meanwhile, reaffirmed the supremacy of civilian rule and clearly defined institutional
boundaries.

Such verdicts reassert the rule of law and strengthen democracy. However, progress has been patchy,
stymied now and again by hyper judicial activism that has breached institutional boundaries, thereby
weakening the democratic process. Hopefully the superior judiciary is mindful of this history, and
inclined to be more circumspect. The present chief justice has focused particularly on the dire need for
judicial reform, the absence of which causes untold misery to the less privileged. For example, he has
overseen the setting up of model courts that have considerably reduced the massive backlog of criminal
cases; speedy disposal of cases also means reduced legal costs for litigants. Of course, far more needs to
be done to make the justice system more equitable, such as free legal aid and financial support for
prisoners languishing behind bars even after completing their sentences because they are unable to pay
their fines. Nevertheless, the direction is encouraging, and it must be sustained.
Published in Dawn, November 22nd, 2019

"Section 325 must go" by Masooma Raza

- https://www.dawn.com/news/1518536?ref=whatsapp

SECTION 325 is a criminal law in the Pakistan Penal Code, 1860, and in effect throughout the country. It
states, “Whoever attempts to commit suicide and does any act towards the commission of such offence,
shall be punished with simple imprisonment for a term which may extend to one year, or with fine, or
with both.”

Take a moment to let this sink in. Read each word again, this time more carefully. Introduced in the
colonial era, Section 325 criminalises attempted suicide and calls it an “offence”, disregarding the
already existing social stigma linked to mental disorders and illnesses.

At a recent seminar held at Aga Khan University to commemorate the World Mental Health Day, the
expert panel highlighted the fact that Pakistan’s high-risk groups for suicide are different from those in
other parts of the world. In Pakistan, young people under the age of 30 are most at risk of attempting
suicide.

It is crucial to understand that depression or other mental health disorders are not the only causes of
suicidal ideation, ie passive or active thoughts of suicide. There are many other risk factors, such as
being unable to cope with financial pressures, academic stresses, dysfunctional relationships and
bullying. According to Dr Ayesha Mian, chair of the department of psychiatry at AKU, for every one
person who takes their life, there are 10 people actively planning suicide and 100 with suicidal ideation.
Thus, repealing Section 325 becomes an extremely relevant step in preventing suicide.

We cannot effectively prevent suicide until it is decriminalised.

This was attempted in 2017, when Senator Karim Ahmed Khawaja moved an amendment bill to
decriminalise suicide. But, despite its unanimous adoption by the Senate and Council of Islamic Ideology,
it is unfortunate that the bill was later put on the back-burner and not passed by the National Assembly,
eventually lapsing at the end of the last government’s tenure. Nevertheless, this effort must be lauded.

Sadly, the issue has not been taken up again since the current government’s tenure began. Despite the
fact that, in September 2018, President Arif Alvi called for a 24/7 suicide prevention helpline following
the tragic death of a young model, there has been no action taken to realise this suggestion, nor has
there been any attempt to pick up the effort to decriminalise suicide where it was left off.

Comprehending the objective of Section 325 is further clouded by the fact that Pakistan is one of the
signatories to the WHO’s Mental Health Action Plan 2013-20, which places special emphasis on suicide
prevention.

It states, “Many people who attempt suicide come from vulnerable and marginalised groups. Moreover,
young people and the elderly are among the most susceptible age groups to suicidal ideation and self-
harm. Suicide rates tend to be underreported owing to weak surveillance systems, a misattribution of
suicide to accidental deaths, as well as its criminalisation in some countries … As there are many risk
factors associated with suicide beyond mental disorder, such as chronic pain or acute emotional
distress, actions to prevent suicide must not only come from the health sector, but also from other
sectors simultaneously.”

The signatories of this action plan have also pledged to develop suicide prevention programmes. But
how can the Pakistani healthcare system address the stigma attached to suicide and implement such
programmes when most hospitals avoid facing legal liability as a result of Section 325, and are hesitant
— sometimes even refuse — to provide physical and mental health interventions in cases of attempted
suicide?
While believing firmly in the sanctity of the religious view on suicide, the only right way to prevent
suicide in Pakistan is by identifying those who are at risk and providing them necessary and appropriate
help. This requires tackling the social stigmas attached to suicide, which are only reinforced by its crimi-
nalisation.

Thus, the legislatures must craft a new law that enforces a comprehensive treatment plan, including
urgent, cost-effective and appropriate counselling and rehabilitation programmes. Individuals will only
be discharged from this treatment plan once it has been deemed fit by the chosen team of psychiatrists
and other medical professionals.

However, is not just hospitals that should incorporate suicide prevention and counselling programmes;
employers and educational institutions must also play their role in destigmatising suicide, while
maintaining individuals’ confidentiality. This would ensure both, that there are safety nets to mitigate
risk factors, and timely intervention and treatment with appropriate care.

As dutiful members of society, all of us must also be cognisant of warning signs from people close to us.
Listening compassionately and showing kindness to vulnerable individuals often ease their self-harming
thoughts. Guiding them to seek professional help, without judgement, is one of the right approaches to
prevention.

The writer is a graduate in healthcare administration.

Published in Dawn, November 24th, 2019

"A debatable solution" by I. A Rehman

- https://www.dawn.com/news/1527166?ref=whatsapp
THE ease with which matters regarding the fixation of terms of the appointment of the defence services’
chiefs, their reappointment, and the retirement or extension of their tenures have been settled, and all
this without much debate, must have surprised even those who know everything about Pakistan’s
politics.

The government’s bill on the subject drew two responses. A less-noticed point of view was offered by
the Pakistan Bar Council and some civil society organisations. They argued that reappointment of the
service chiefs or extension of their tenures was not in the interest of their respective institutions. They
took into account the impact of proposed steps on the careers of officers in the line of command. These
officers were going to become ineligible for promotion to the top slot without a fair assessment of their
talent and capacity for leadership. That these officers could not deal with emergencies caused by
external aggression or internal disorder was an untested supposition.

Even otherwise, one could have added that Pakistan’s defence services have been moving away from
the concept of total reliance on their chiefs. The change in the designation of these heads of services
from commander-in-chief to chief of staff was not without significance. Regardless of his motives, Gen
Ziaul Haq’s innovation deserves notice. He transformed the chief of army staff into a commander of the
force in council (comprising the corps commanders). The present chief of army staff has strengthened
the scheme of collective leadership by increasing the frequency of corps commanders’ meetings. That
collective leadership of services is better than putting the entire burden on the chief cannot be denied.

However, the idea of moving away from reappointment of service chiefs or extending their tenures
perhaps came before its time. It had little chance of being examined in a situation when, as declared by
the Punjab Assembly Speaker, Chaudhry Pervaiz Elahi, the whole nation is standing behind the army.
Yet, the dismissal of the suggestion to give due weight to institutional interest cannot be overly
regretted.

The Supreme Court did not touch on the justification or otherwise for extending a service chief’s tenure

Unfortunately, the Supreme Court did not touch on the justification or otherwise for extending a service
chief’s tenure. Perhaps it was not supposed to do that. It only dealt with the absence in law of the terms
of appointment of a service chief and wanted parliament to make legal the provisions for his
reappointment or extension of his tenure, if and when this was done.
The second response, which may be described as pragmatic, left some points unresolved. In its first
phase, the major political parties rushed to support the move to provide for reappointment/extension in
the terms of all three chiefs of defence services. While the religio-political parties (the JUI-F and Jamaat-
i-Islami) continued to oppose the three bills, the major political parties, the PTI, the PML-N and PPP
apparently jostled to find a place on the army’s page. Were they driven by fear of reprisals?

The ruling party was visibly overjoyed at the display of opposition support. The National Assembly
speaker finally issued orders for the production of the jailed MNAs so that they could vote in favour of
the official bills. A week ago, the TV channels were running a statement by the PTI National Assembly
chief whip to the effect that the relevant bills would be introduced in the National Assembly the next
day before Friday prayers and adopted forthwith. The bills would then be presented in the Senate after
Friday prayers and adopted forthwith. Fortunately, he was proved wrong because the PML-N and PPP
insisted on the adoption of the prescribed procedure.

The bill to amend the Army Act (with identical amendments proposed to the Navy and Air Force Acts)
had suggested the following:

— The COAS and chairman, joint chiefs of staff committee (CJCSC) will be appointed by the president
under Article 243 of the Constitution on the recommendation of the prime minister, and both of them
for three years.

— The COAS could be reappointed for an additional term of three years. His tenure may be extended for
up to three years in the national security interest or exigencies, from time to time.

— Regardless of the term fixed for the COAS at appointment, reappointment or extension of tenure his
age of superannuation will be 64. (Official sources seem to be interpreting the provision differently.)

— The terms for the reappointment/extension in the tenure of the CJCSC would be identical with the
terms allowed to the COAS.

— The appointments of service chiefs, their reappointment or extension in their tenures cannot be
challenged in any court.
The PPP reportedly moved three amendments to the bill to amend the Army Act:

i) The prime minister must explain the grounds for extending the tenure of the COAS before the
parliamentary committee on national security.

ii) While the prime minister could recommend an extension of the tenure of the COAS his
reappointment is not possible; and

iii) The provision that the orders in discussion cannot be challenged before any court may be dropped.
(This provision might not prevent the courts from exercising their inherent powers of judicial review.)

All of these amendments were withdrawn when the bill came up before the National Assembly and the
passage of the bills through the Senate was a mere formality. As pointed out earlier, lack of debate left a
few points unclear. The clumsily constructed retirement clause could cause confusion. The
reappointment for an additional term could become the norm. While some grounds are mentioned for
extension of tenure, no grounds seem to have been offered for reappointment. There is no mention of
how many times one can be reappointed. Had the public at large been encouraged to debate the bills it
might have helped in making the text clearer.

Tailpiece: A TV channel reported a suggestion by a citizen to the effect that all the three major political
parties should be merged into a single party. Full marks for perceptiveness.

"Violent lawyers" by Dawn Editorial

- https://www.dawn.com/news/1522018?ref=whatsapp

WHAT else could be more damning evidence of a society teetering on the edge of anarchy than when
those sworn to uphold the law violate it in a manner that is considered a crime even in times of war? On
Wednesday, hundreds of lawyers stormed the Punjab Institute of Cardiology in Lahore after videos
emerged on social media showing certain doctors from the hospital mocking the black coats over an
ongoing dispute between the two sides. And this was no spontaneous violence, condemnable as even
that would have been. This was a pre-planned assault, with the mob — some of its members carrying
sticks and guns — descending upon the hospital en masse, determined to wreak havoc. The outcome
will forever remain a blot on the legal community. Rampaging through the country’s largest cardiac
facility, the attackers destroyed furniture and equipment — including ventilators — smashed window
panes, and damaged cars. They also forced their way into the emergency department, terrorising and
manhandling the medical staff and patients’ attendants who were forced to flee leaving the critically ill
behind. At least three patients died during the mayhem. The police finally managed to control the
situation after a prolonged face-off during which they baton-charged the mob and fired tear gas shells.

There have been numerous incidents in recent years where the legal community has displayed utter
contempt for the law. Ironically enough, it may have been the lawyers’ movement from 2007 to 2009 —
considered a prime example of effective civil resistance — that sowed the seeds for the out-and-out
thuggery increasingly on display by the black coats. For it seems that the movement’s success in
achieving its objective — the restoration of then Supreme Court chief justice Iftikhar Chaudhry —
instilled in some lawyers a taste for confrontation coupled with a certain hubris in which there is no
room for dissent. Vicious brawls have broken out on court premises between opposing advocates;
courtrooms have been ransacked; and in late 2017, a crowd of lawyers vandalised a new judicial
complex. The bench, too, is often a direct target of the black coats’ ire. Members of the judiciary have
been held hostage inside their courtrooms, intimidated during proceedings, and threatened with
physical violence. Wednesday’s rampage, however, plumbs new lows in its complete disregard for the
basic norms of humanity.

Of course, the majority of lawyers are not cut from the same cloth, and many of them have roundly
condemned their compatriots for their abhorrent actions. Nevertheless, there are among them
sufficient numbers of such disorderly individuals as to bring the entire fraternity into disrepute. So far,
FIRs have been filed against over 250 advocates involved in the episode. Not only should they be
proceeded against under the law that they have so shamefully trampled on, but the Pakistan Bar Council
must strip them of their licences. Such lawyers do not belong in any courtroom.
Published in Dawn, December 13th, 2019

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"Unrepentant lawyers" by Dawn Editorial

- https://www.dawn.com/news/1522355?ref=whatsapp

ONE would have imagined that our ‘upholders of the law’ would have felt profound revulsion at the
actions of their compatriots on Wednesday when a mob of black coats stormed the Punjab Institute of
Cardiology in Lahore. Not only were hospital staff beaten and lifesaving hospital equipment destroyed,
but some critically ill patients died during the shameful episode, possibly as a direct result of the
mayhem. However, most lawyers — with certain exceptions — and bar associations have doubled down
on the brazen disregard for the norms of decency and the law itself, demanding that the lawyers
arrested for running amok like members of a street gang be released immediately. In keeping with this
belligerent stance, the nationwide strike call issued by several bar associations was enforced on Friday
through threats and intimidation against those reluctant to participate. Sadly, aside from Chief Justice
Asif Saeed Khosa, even many of those who condemned the violence did so in muted language, citing
‘provocation’ on the part of certain PIC doctors against the lawyers as a mitigating factor. This amounts
to defending the indefensible. Under no circumstances can an attack on a hospital be justified.

That said, it is also a fact that many doctors in this country have repeatedly dishonoured their oath, a
dereliction of duty that can mean the difference between life and death. A glance at some recent
incidents suffices to illustrate the point. Earlier this year, doctors and paramedics in Balochistan went on
strike for no less than 50 days during which OPDs in the province’s government-run hospitals remained
closed. A month-long strike by doctors in Punjab ended in November only when the Lahore High Court
issued an order to the effect. In September, violent clashes broke out in Peshawar between the police
and doctors protesting over a controversial piece of legislation. The rampage at the PIC too began with
thuggish behaviour by medical professionals at the hospital. There have even been occasions when
medics have boycotted emergency services. Those at the receiving end are the hapless citizens of this
country who cannot afford private health facilities; often, they travel long distances from under-
resourced rural areas in search of medical attention in urban centres, only to find shuttered OPDs. There
can be justifiable reasons for doctors to protest, such as insufficient pay at government hospitals, but
they should make their case without causing hardship to patients and their families.

For their part, provincial authorities and local administrations must deal swiftly and fairly with incipient
disputes and simmering discontent. Eroding mechanisms of arbitration and justice have left this society
increasingly prone to knee-jerk reactions and vigilante ‘justice’. Disturbingly, lawyers today are among
the most disorderly segment of the population. Senior advocates have demanded a judicial inquiry into
Wednesday’s attack, which is fair enough. But is this crop of lawyers prepared to accept its findings?

Published in Dawn, December 15th, 2019

"‘Irrational’ violenc" by Umer Javed

- https://www.dawn.com/news/1522523?ref=whatsapp

AS with all pieces on the issue, this one too starts off with the premise that no amount of condemnation
is enough for the lawyers’ rampage at the Punjab Institute of Cardiology and the persisting state of
inaction and grandstanding from bodies regulating the profession. Barring the brave stance taken by a
few independent practitioners, it increasingly looks like this incident will go the way of previous
episodes of wuklagardi: without any punitive action or lasting impetus for reform.

The institutional causes for violence by lawyers have been summed up well in a few recent pieces: the
organisational dimension of such collective violence, ie the bar associations, are correctly identified as a
major factor by Maryam Khan and Reza Ali in recent op-eds. Khan’s point, in particular, about funds
being funnelled into these entities, as well as the culture of impunity bred within their leadership is of
utmost importance. Similarly, the phenomenon of ‘outbidding’ — competing lawyer leaders trying to
prove they’re more committed to the community by engaging in or justifying egregious acts — is
another key driver of group behaviour.

One aspect, however, that has received somewhat less attention is the broader issue of violent protest
and group conflict itself, and why exactly it manifests so frequently in Pakistan. The shock factor
surrounding this recent incident was on the profile of the participants — ostensibly college-educated,
middle and lower-middle class, white-collar professionals. The reaction pays homage to a time-tested
trope in Pakistani popular discourse that somehow education is a great firewall against everything from
violent behaviour, to bad voting decisions, to corruption.

The fact, borne out by recent events, is that a college degree does not guarantee against any type of
behaviour, let alone violent behaviour. The BFRS political violence dataset (which covers the years
between 1988-2010) lists 317 incidents of explicitly violent protests, riots, and demonstrations carried
out by ‘professional groups and unions’. That’s at least 14 violent protests a year on average, which is
precisely why we need better explanations for such incidents.

The starting point for us is that ‘irrationality’ needs to be set aside as an explanation for any type of
crowd behaviour.

The sociological literature on violent collective action provides some interesting insights that can
complement the institutional/political explanations pointed out by other authors. The starting point for
us is that ‘irrationality’ needs to be set aside as an explanation for any type of crowd behaviour. People
who participate do so in their senses, and for a variety of reasons.

Gary Marx’s typology of riots, published almost 40 years ago, is useful in so far that it points out how
violence can both serve very specific goals and is frequently underpinned by a shared belief among the
participants. In many cases both are present. In the PIC case, the instrumental goal was seeking revenge
by intimidating a specific group of doctors who had apparently ‘offended’ the lawyers’; and the shared
belief was the consecration of group privileges and group ego that now underpins bar association
politics.

The powder keg in this as with so many other violent incidents is the sense of impunity that pervades
any reasonably powerful group in the country. Individuals are more likely to participate in transgressive
activities, even document them on TikTok and Facebook Live, if they feel that the repercussions are
going to be limited at best. This sense of impunity is in itself learned behaviour, accumulated over
multiple episodes of getting away with violent behaviour, now spanning more than a decade.

As detailed here, understanding violent acts as utilitarian strategy undertaken by thinking, knowing
individuals helps us move past ‘deviancy-based’ understandings that invoke irrationality as explanations.
Yet for all their value, they still underplay one key aspect: the values, emotions, and, more broadly, the
cultural milieu through which violent rioters make sense of the world around them — a sense, which in
this case, made the act of forcefully removing oxygen masks from cardiac patients seem like a perfectly
reasonable course of action.

In one of the rare expositions from this particular slant, legal academic, Emad Ansari shed further light
on the sociocultural context of transgressive behaviour by lawyers: while many of the participants are
credentialled professionals, they on average experience largely unfulfilling careers. They are often
caught up in rigid patronage chains with senior lawyers (bar leaders for example), remaining beholden
to them for cases and clients, while remaining stuck themselves in precarious material conditions.
Demonstrating loyalty as dutiful underlings is expected behaviour, especially in moments of collective
response such as a protest or a strike, even when the reward structure is heavily skewed towards a
select few.

This is not unique to lawyers, which is perhaps why violence is not unique to them either. Whether
accurate or misplaced, feelings of marginality, unmet expectations, and disenfranchisement pervade
many societal groups who feel their credentials, occupational, and even caste status, make them
deserving of something bigger and better. More broadly, as men in a deeply patriarchal society, an
inability to meet societal expectations due to failure in the professional domain and status shortcomings
(general lack of respect among peers and others), is another ideational burden that many grapple with.

Going on a rampage is not an automatic (read biological/natural) outcome of this, but it can be deemed
as the ‘appropriate’ response to address these issues by years of socialisation and acculturation in
particular environments. Violent self-expression, as status/respect-seeking behaviour, should thus not
just be seen as irrationality, nor even just as utilitarian strategy, but as socially embedded action.

The point of raising these issues is not to absolve anyone of the crimes they’ve committed; it is simply to
add to existing conversations about bar association reform and legal consequences for such behaviour.
We need to start thinking beyond impunity-based explanations for why so many find it easy to turn to
violence, what are the cultural and social drivers of such behaviour, and whether these drivers can even
be tackled by punitive measures alone.
The writer teaches politics and sociology at Lums.

Twitter: @umairjav

Published in Dawn, December 16th, 2019

"Saving the legal profession" by Faisal Siddique

- https://www.dawn.com/news/1523857?ref=whatsapp

NOTHING surprises you in Pakistan. Nevertheless, the Punjab Institute of Cardiology (PIC) being attacked
by a mob of lawyers in Lahore is not only unbelievable but a shameful act which cannot be justified.

Two narratives have emerged to explain this incident. On the one hand, persons of right, left and liberal
leanings and even former supporters of the lawyers’ movement have interpreted this mob violence as
proving that lawyers have become a mafia or gangsters. On the other, lawyers’ associations and their
leadership have taken a much more confusing and contradictory position by condemning the attack on
the hospital itself but defending the lawyers involved in the attack on various grounds — namely, that it
was a ‘conspiracy’ by outsiders, or that the violent lawyers were both perpetrators of violence and
victims of provocation by doctors, or that it was the government’s failure to resolve this conflict
between lawyers and doctors.

But both these narratives seem either simplistic or apologetic.

Violent lawyers: Lawyers and their associations have emerged as a very powerful macro actor in
Pakistan as a result of the lawyers’ movement from 2007 to 2009. Moreover, such extraordinary power
has been accompanied with increased violence by lawyers against civilians, police officers, government
officials and judges, including high court judges. The lawyers’ movement thus laid the basis for an
extraordinary increase in lawyers’ power and prestige, based on the public legitimacy of their just causes
— but it is this very power that has been misused in order to perpetuate violence. There’s nothing
surprising about this, because history tells us that great power always coexists with the abuse of it. But
this increase in violent lawyers has been made possible because of four critical factors.

By failing to hold those involved in the PIC attack accountable, lawyers risk losing their legitimacy.

Firstly, in all recent major instances of lawyers resorting to violence, lawyers’ associations have not only
failed to hold them accountable; instead, they have actually supported this behaviour by providing
justifications for their violence. In short, lack of accountability combined with justification of such
actions has legitimised and perpetuated this violence.

Secondly, there is an apartheid divide in the legal community — between a small group of elite lawyers
who use a complex system of political, social and legal networks to capture the legal market, and the
overwhelming majority of lawyers who live in permanent economic and social insecurity. These
majoritarian lawyers seek to further their professional interests by relying upon membership of lawyers’
associations and, at times, the threat or use of violence against others, with these associations’ active
support. In short, the elite lawyers’ connections and networks are substituted by these majoritarian
lawyers with the power of their trade union and its threat of violence.

Thirdly, how can any lawyer with any rudimentary sense of professionalism and legal ethics attack a
hospital? Lack of professionalism and lack of ethics are rampant among lawyers. This is because lawyers
without professionalism and ethics exist and flourish with the support of lawyers’ associations.

Fourthly, all three of the aforementioned factors are only possible because there is an unwritten
consensus among the warring factions of the lawyers’ leadership to sustain this status quo. In the legal
community, the politics of status quo trumps the politics of reform.

Unprecedented attack: The repeated occurrence of violence by lawyers cannot explain why such
violence became so extreme that it led to an attack on the PIC. No other group except Islamist militants
have attacked hospitals. Two critical factors converted this potential of lawyers’ violence into this
unprecedented attack.
Firstly, the attack on PIC comes at a time when Punjab has had one of the weakest and most confused
provincial governments in its history, with repeated changes being made in the police and civil
bureaucracy. In short, a weak and confused government invited and facilitated mob violence. Secondly,
the six years preceding this attack have witnessed multiple occasions of mob violence, with active
support of powerful state officials, to achieve various goals — eg, the PTI dharna of 2014, or the
Tehreek-e-Labbaik Pakistan dharna of 2018. In other words, mob violence has been legitimised by the
state itself. Mimicry is a cause of great historical events; the lawyers’ attack on the cardiac hospital is a
mere mimicry of recent successful acts of mob violence.

State of denial: The extraordinary power of lawyers and their associations is neither based on coercive
power, nor the strength of their members, nor their organisational ability. Rather, post-2007, their
extraordinary power is based on public legitimacy, which means the respect and support given by the
public to their goals and conduct. Without public legitimacy/support, lawyers are a miniscule number of
organised individuals who can be controlled or silenced by a powerful state and powerful vested groups.
Lawyers and their leadership should realise that the public holds them primarily responsible for this
attack on PIC, and that no one believes their narrative of conspiracy and victimhood. If lawyers and their
leadership continue in their state of denial by refusing to categorically condemn and punish those in
their community involved in this violence, they will lose their public legitimacy. As a result, this will be
the beginning of the end of the extraordinary power enjoyed by lawyers in this society.

Avoiding self-destruction: In order to redeem themselves and avoid self-destruction, four immediate
steps are required. Firstly, all major lawyers’ associations must pass a categorical resolution apologising
to the victims of the PIC attack and unqualifiedly condemning all lawyers involved in this grisly episode.
Secondly, the licences of lawyers involved in this incident must be suspended after due process. Thirdly,
a judicial commission composed of a superior court judge and civil society members must be demanded
to inquire into this incident. Fourthly, criminal prosecution of the accused lawyers should not be
obstructed by the lawyers’ associations.

If this current path of self-denial and self-destruction is not abandoned, then the lawyers’ associations
might save a few guilty lawyers — but at the expense of irreparably damaging the entire legal
profession. n

The writer is a lawyer.

Published in Dawn, December 23rd, 2019

"Transparency In Judicial Appointments" by Harris Azmat

http://courtingthelaw.com/2019/12/28/commentary/transparency-in-judicial-appointments/

Transparency In Judicial Appointments

Quis custodiet ipsos custodies? is a satirical query posed by poet-philosopher named Juvenal in Ancient
Rome which literally means “Who will guard the guards”. In our jurisprudence the superior court judges
act as a conscious keeper of the Constitution and ultimate protector of the rights of citizens and the
society at large. The law in the Supreme Court’s own words is ‘be it enacted or customary, is what the
courts interpret and finally enforce’.

So with this backdrop, the superior courts being the final arbiter of all disputes and being the court of
last resort, it has become even more important to have the most eligible person for the job. Being a
constitutional appointment where security of tenure is an absolute pre-condition for independence of
judiciary, the only main check is at the initial appointment. The appointment to any public office is a
sacred trust in which the process must be above board, devoid of even the slightest taint of favoritism.

The process for appointment of superior court judges is provided in Article 175-A of the Constitution. It
is a two stage appointment process where there is the all powerful judicial commission and a
parliamentary committee. The process requires independent assessment of all nominees at both stages.
The judicial commission comprises of thirteen members which includes eight Honourable Judges and
parliamentary committee consists of eight members, selected from both houses of the parliament. The
new process introduced through the eighteenth amendment in 2010 was a departure from the past
practice where the Chief Justice had the final say in appointment of judges. The new process was
envisaged to bring transparency by involving the collective wisdom of two high powered bodies.
However, soon thereafter Article 175-A came up for judicial interpretation before the Honourable
Supreme Court in Munir Bhatti’s case (Munir Hussain Bhatti v Federation of Pakistan PLD 2011 SC 407)
when the recommendations of the judicial commission were not confirmed by parliamentary
committee. The Supreme Court in the said case held that parliamentary committee cannot question the
caliber, legal acumen, judicial skill and quality of the nominee if he has been approved by the judicial
commission. The court further observed: ‘We are thus unable to see the technical expertise, judged by a
(Judicial) Commission comprising of people having spent decades in the legal filed, could be better
judged, or worse, reversed by the Parliamentary Committee. If this was intended by the legislature then
there was simply no need to even constitute Judicial Commission”.

Since the Munir Bhatti’s case the judicial commission has the final authority for the most part and the
role of parliamentary commitee has been greatly reduced and is superfluous. Some may even argue now
that we have gone to the past practice of ‘judges appointing judges’.

With the present process especially in the appointment of the High Court Judges, the most important
role is that of the respective Chief Justice of the Province. As per Section 3 (2) of the Judicial Commission
of Pakistan Rules, 2010 it is only the respective CJ of the Province who can initiate the names of the
candidates for consideration by the Judicial Commission. It is interesting to observe that there are no
guidelines (at least in the public domain) as to how the respective CJ will short list lawyers except the
constitutional requirement of the nominee being more than forty five years of age and having 10 years
standing as an Advocate of the High Court. There is no way the general public can ascertain or access the
reasons that may have motivated the CJ of a particular province to select a particular name. This initial
and crucial step in the judicial appointment process leaves a lot of unfettered discretion as to who will
be even considered for selection. In the current process even when a candidate is short listed let alone
appointed, the public has no way to find out as to why a particular candidate is chosen over the other. It
has been time and again held by our superior courts that the concept of absolute, unfettered or
unguided discretion by public authorities is treated as alien to the essence of rule of law. At this stage, it
imperative to introduce publicly known guidelines in short listing of a particular candidate over the other
for instance the number of reported judgments or years of standing before the supreme court etc. so
that the discretion is structured and process becomes more fairer.

Also when a particular short listed candidate is selected or rejected by the judicial commission, the
general public or even the legal fraternity cannot find out the reasoning for such decisions as the
proceedings are in camera and the minutes are never made public.. Thus the judicial commission can
further increase the confidence of the masses by at least disclosing the minutes and especially the
dissenting comments of the members of commission (if any).
Every time and this is without exception that when judges are appointed, there is surprise and
resentment on certain names from both the bar and the general public due to lack of transparency in
the system.. The process might be absolutely fair and unexceptional but it is shrouded in secrecy. It goes
without saying that independent judiciary is bedrock for all civilized societies and the confidence of the
public will be further strengthened in our judicial system if the appointment process is more transparent
and inclusive.

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.

The post Transparency In Judicial Appointments appeared first on Courting The Law.

"Witness protection" by Editorial

- https://www.dawn.com/news/1531207?ref=whatsapp

IT is a fact that for the criminal justice system to deliver, a strong witness protection programme is
needed. This is especially so in a country like Pakistan, where there is a huge backlog of cases concerning
acts of terrorism and violent crime. Due to the nature of such offences and fearing retaliation by the
perpetrators, witnesses are often afraid to testify. There have been instances where people have
refused to give testimony in cases where notorious sectarian militants were being tried. As pointed out
in a recent report in this paper, trials in terrorism cases in Sindh’s anti-terrorism courts are being held up
because the province’s witness protection law, passed in 2017, has not been implemented. The result is
a backlog of 1,700 cases in Sindh’s 33 ATCs, and a conviction rate of around 17pc. The conviction rate in
other provinces is hardly better in terrorism cases, with the lack of a proper witness protection
mechanism contributing to this state of affairs.

When hardened criminals threaten witnesses or their families with dire consequences if they dare to
testify, and the state does nothing to protect them, who will be brave enough to appear in the witness
box? That is why the provinces need to take serious measures to implement workable witness
protection programmes that protect the identities of those who come forward to testify against violent
individuals. As quoted in the aforementioned story, an ATC judge trying militants allegedly linked to the
self-styled Islamic State group observed that “the public has become too frightened to assist the system
fighting against terrorism...” To reduce this sense of fear, witnesses must be offered robust protection
by the state, and new identities and relocation if need be. The methodology of advanced legal systems
can be studied and their best practices replicated here. Unless the witness protection laws are
implemented, many militants and violent actors will either walk free, or be gunned down in shadowy
encounters due to the faulty criminal justice system.

Published in Dawn, January 29th, 2020

Controversial NAB

Editorial | February 29, 2020

IF the National Accountability Bureau has earned anything since its creation by a military dictator two
decades ago, it is public censure and mistrust. The anticorruption watchdog has over time become
perhaps the most disliked agency in the country. Although the law was amended slightly last year, NAB
still retains its powers to arrest people on mere complaints and allegations of corruption and financial
wrongdoings. The truth is that NAB has hardly any ‘success’ to its credit to prove that it is adept at
investigating white-collar crime — the task it has been entrusted with and that is the justification for its
existence. Had the accountability law not provided for ‘plea bargain’ deals with the suspects and
allowed NAB investigators to adopt a controversial, highhanded approach, it would have nothing to
flaunt. The recent hearings of two corruption cases against former prime minister Shahid Khaqan Abbasi
and former planning minister Ahsan Iqbal are evidence of how flawed the accountability law is. The
politicians’ cases amply demonstrate that NAB does not open corruption inquiries on the basis of solid
proof. Nor do its investigators care about actual probes. Little wonder then that most cases continue to
linger in the accountability courts for want of proper evidence for years. In granting bail to the two
former public representatives the other day, the Islamabad High Court laid bare the many faults in NAB’s
investigation process. Chief Justice Athar Minallah raised some important questions about the bureau’s
policy regarding the arrest of individuals — even when they were fully cooperating with the
investigators in the probe against them — and blatant violations of the suspects’ constitutional rights.
Apparently, NAB investigators have made no headway against Mr Abbasi who was arrested almost
seven months back in the controversial LNG case. Officials involved in the case also have shown little
understanding of how international business deals are done. Nor could they satisfy the judge on why it
was necessary to arrest suspects, especially if they happened to have been elected public leaders.

The NAB actions against opposition politicians in the last couple of years, on the basis of flimsy evidence,
has reinforced the belief that the agency is being used by the powers that be to make them fall in line.
One can recall the way in which Pervez Musharraf used the body to carve out the ‘Patriot’ group from
the PPP after the 2002 elections. That is not all.Recent NAB cases against bureaucrats and businessmen
and the alleged pressure on them to turn approver against previous rulers have probably damaged
investor confidence more than the government’s flawed policies to stabilise the economy. It is because
of these reasons that many are calling for the reform of the accountability law and anti-corruption
watchdog. In fact, NAB lost its credibility quite a while back and needs to be shut down.

Published in Dawn, February 29th, 2020