Mastering the lawless science of our law, that codeless myriad of precedent, that wilderness of single instances...

The words of Alfred Lord Tennyson aptly describe the dilemma, legal fraternity is facing in Pakistan today, both the judges and the lawyers. There is a growing tendency amongst the lawyers, especially the relatively younger ones, to target the Supreme Court of Pakistan.

There were a lot of expectations from the judges of Supreme Court when they were reinstated and no hesitation in saying that Honourable judges have been falling short of those expectations on many occasions. It is not appropriate that people who do not even have the licence to practice in the Honourable Supreme Court of Pakistan come out on media, both electronic and print, criticizing the Supreme Court as if they are the experts on the law and Constitution of Pakistan. The problem lies with the “independent media” as well which at times invites certain people as “experts” on law and Constitution. It would be good to see the experts in the courts of law for some time for a change instead of TV channels and print media alone. Such TV anchors and news channels should do some research on the sort of experience their resident experts have in the courts of law before declaring someone an expert. If they go to relevant High Courts and get the lists of cases being dealt with by these law experts in the last 5 years they will get some interesting facts.

There is a need to distinguish between a journalist who knows about law and an expert in law and Constitution. The journalist with the knowledge of law will always have something to say about any decision of the court but no one in the legal community will take that seriously no matter how much his opinion is flashed on the TV channels. The expert is someone who is taken very seriously both by the members of bench and the bar because he has the knowledge and experience of decades under his belt so his opinion matters. I am a firm believer that going to red brick institutions or Ivy League law schools does not guarantee that one can be a good lawyer. Over the past few years in Lahore High Court I have seen some very good lawyers who graduated from national universities and at the same time I have seen very bad ones who studied abroad and vice versa. I don’t judge the lawyer from his academic qualifications but from the sort of arguments he puts forward in the court of law and not the media. I think for those who criticize the judges the right thing to do is to present their “articulate” arguments before the judges while arguing a case instead of trying to teach law to judges while sitting on a TV channel.

I think of Supreme Court of Pakistan as an institution and if someone has to criticize it, then they should criticize the institution rather than singling out judges. Whatever challenges the Honourable judges are facing they are in it together. If certain judges are being criticized for judicial activism or let me say ‘judicial hyper-activism” then the whole institution has to be held responsible.

I am a strong believer in the fact that dissenting judgments ensure the development of law. We need more of that and judges should be true to themselves and should not be intimidated by the fellow senior brother. I am not making any suggestions or presumptions that our judges do not think independently but I am just stating the fact that dissenting judgments are rare in the recent law reports of Supreme Court of Pakistan. The importance of dissenting judgments was stressed upon by the Chief Justice Stone in a letter to Columbia University in 1928 in which he said that:

“A dissent in a court of last resort is an appeal to the brooding spirit of the law, to the intelligence of a future day, when a later decision may possibly correct the error in which the dissenting judge believes the court to have been betrayed.”

Another difficulty is the presence of new reporters in the Supreme Court of Pakistan and all the “tickers” that are being displayed throughout the day regarding comments made by the judges of Supreme Court. There is a strong need to take care of this issue. The problem arises when news reporters constantly keep on sending texts from inside the court room or keep on coming out of the court and give updates after every 10 minutes. They quote comments passed by judges during the proceedings and those comments are mostly out of context and that leads to judges being criticized for passing ‘political comments’. The most appropriate example would be the case when Dr. Tahir-ul-Qadri was giving dharna in Islamabad and suddenly this news was flashed all over the news channels that the Supreme Court has ordered that PM Raja Pervaiz Ashraf should be arrested. The Supreme Court needs to decide whether it wants media coverage or not and if it thinks that our legal community and society in general are ready then they should allow live coverage of the proceedings like UK Supreme Court. All the proceedings before the UK Supreme Court are broadcasted live on sky news. That eliminates any possibility of being quoted out of context.

n    The writer is a Barrister-at-Law.