Asking questions.

Byline: Basil Nabi Malik

THE recent dissenting note of Justice Qazi Faez Isa has given the public a sneak peek into the internal workings of the apex court, whereas the lawyers' recent attack on the Islamabad High Court is yet another incident which has exposed the flaws of Pakistan's justice system. Although these events and incidents may be of profound significance, in order to fully understand our predicament, it is important to take a step back and analyse what exactly is happening in Pakistan.

Pakistan has always had a troubled relationship with its judicial set-up, which as per various historians, has had a 'chequered past'. This chequered history of the judiciary tends to refer to, amongst other things, its past role in legitimising military rule at the expense of the very constitutional provisions which gave it life. Additionally, it is also a loose reference to its perceived acquiescence and support for political victimisation of the opponents of whichever government is in power, involvement in issues which are beyond its knowledge base and intervention in matters that would qualify as purely political.

The lawyers movement, as it was then known, had set out to change all this, and I must admit, I had found myself to be amongst its staunchest supporters. But where the movement succeeded in bringing about an awareness about the importance of the rule of law, it failed miserably in forcing reform which could have actually culminated in far-reaching and long-lasting change.

The reason for this was and is that we have been consistently asking the wrong questions. Where we should have been asking tough and difficult questions in order to break with our past, we sought refuge in convenient rhetoric which felt safe, and obscured the real issues we were facing. For example, when we should have been asking whether the judiciary's independence faces a greater threat from external aggression or internal weakness, we sought refuge in only conversing about and identifying external threats as possible impediments to an independent judiciary.

The lawyers movement failed to bring about change.

When we should have been asking if a non-transparent mode of appointing and removing judges weakens the judiciary and opens it up to possible outside influence, we preferred to mull over the question of whether or not such appointments or removals, and by necessary corollary judicial independence, can only be protected by keeping them within the purview of...