What we still don’t know about the Lawyers’ Movement

(Image credit: Wiqi22, CC BY-SA 3.0, Wikimedia Commons)

By Maryam Khan

The Lawyers’ Movement is too fresh in our collective memory to need any introduction. It has attracted ubiquitous media coverage and commentary, invited praise and accolades as well as severe criticism from various quarters, and piqued the curiosity of legal bars and legal thinkers around the world about the potentialities of political lawyering.

It is now almost a trope to state that while the Movement accomplished its most immediate mission of reinstating arbitrarily deposed judges, it fell short of many other expectations. But missions and expectations aside, we are yet to fully comprehend how the Movement happened, who were its protagonists and catalysts, and who were and are its beneficiaries.

These questions are not merely an exercise in intellectual or nostalgic indulgence. They push us to think of fresh optics to analyse the Movement. Looking back at how the Movement was organized and the motivations behind it can tell us a lot about the structural synergies and dependencies between the bar and the bench, and how this nexus between the two generally impacts access to justice in Pakistan.

To begin with, we know very little about how spontaneous the Movement was. The peremptory removal of judges by military dictators is not an uncommon occurrence in Pakistan’s judicial history. The historical record raises questions about why and how the legal bar mobilized, especially in support of Chief Justice Iftikhar Chaudhry.

To be sure, the media played a role in sparking the ire of the legal community, just as the widespread anti-Musharraf sentiment helped in creating cross-party associational coalitions against his regime. However, while one could think of these factors as immediate or enabling triggers for the Movement, they are not sufficient in explaining such an unprecedented legal mobilization.

Three important lines of inquiry may provide the missing pieces of the puzzle. One is the internal organization of the legal bar and its various components. The second is the larger structural relationship between the bar and the bench. The third is the network of linkages between the bar and political parties. The alignments and power dynamics of the legal bar that emerge from the complex interplay of these three factors can give us a fuller picture of the organizational capacity of the bar to mobilize in general, as well as about the specific interests, alliances and motivations that drove the Movement.

Another lingering question is about how widespread or far-reaching the Movement was. How far down did it extend into the internal hierarchy of the bar? What was the relationship between the bar leadership and the rank and file, and how were decisions at the top disseminated and executed across bar organizations? What was the Movement’s spatial spread across different regions? Was it a pervasive Movement or was it limited predominantly to northern and central Punjab as some have claimed? What was the nature of the symbiosis between the bar and the political parties, and to what extent did the political parties advance the interests and objectives of the Movement?It would appear that the Movement was not as “spontaneous” as is commonly believed, and that it was built and sustained on the foundation of important institutional relationships and alliances that preceded the Movement.

A scrutiny of the Movement’s vertical and horizontal reach can help clarify the nature and extent of support for the Movement. This is important as it can provide us with insights about who benefited the most from the Movement, and the degree to which the success and sustainability of the legal mobilization was contingent on the self-serving objectives of these beneficiaries.

Aside from questions about the Movement itself, we are still grappling with its aftermath. How has the Movement affected access to justice, and has it changed our legal and judicial institutions in any positive way? Has it helped institutionalize our rights as citizens? Has it empowered us to hold the state and its institutions accountable? And if it hasn’t really changed anything at all, or if it has in fact led to some detrimental outcomes, why has this happened? Is there something inherent about the way, or the reasons for which lawyers mobilize that makes legal mobilization ill-suited to judicial reform and citizen empowerment?

One would be hard-pressed to deny that the Lawyers’ Movement has achieved some positives. On a very basic level, it has visibly demonstrated that some of the liberal notions of modern constitutionalism like judicial independence, political rights, and the enforcement of those political rights through judicial review, have a formidable constituency in the legal bar. This is good news.

An institutional constituency that has the capacity and motivation to mobilize for the support of judicial empowerment and independence can be an effective check on the kind of overt political meddling to which our judiciary has often succumbed in the past.

On the other hand, the Lawyers’ Movement seems to have had several negative consequences that are likely to persist in the long-term. In empowering the judiciary, the Movement has also enabled the judiciary to insulate itself from legitimate political accountability. Post the Movement, the Supreme Court has repeatedly asserted its internal control over judicial appointments, has insulated itself from political oversight, and has time and again resisted the much-needed reform interventions on the pretext of ‘judicial independence.’

At the same time, however, the Movement appears to have considerably strengthened the bargaining power of the bar vis-à-vis the bench. The fact that the judiciary owes many of its recent gains to the bar’s support for ‘judicial independence’ means that the bar is likely to remain in a position of institutional dominance over the judiciary, ensuring that the tentacles of judicial autonomy do not extend to the disciplining or reform of the bar itself.

This mutually beneficial equilibrium between the bar and the bench does not bode well for litigants or the justice system as a whole. The institutional interests of judges and the institutional and pecuniary incentives of lawyers seem to be the dominant forces determining the discourse on ‘rule of law’ and pushing back against any meaningful reform of the legal system. Of course, there are historical continuities in the institutional relationship between judges and lawyers. But we need to ask whether and to what extent the Movement has amplified this inter-dependence.

From anecdotal observations, it seems that the two institutions are even more resistant to change, even less motivated to empower the acutely neglected district and lower judiciary, and even less responsive to the many hardships of everyday litigants. Asking the tough questions about the Movement’s contribution to the deep inertia of the legal system can push us to design the right interventions for judicial reform.

Ten years on, then, the Lawyers’ Movement, is anything but history. It has raised many more questions than we can even begin to answer with our largely limited focus on its visible, grand, direct, and immediate effects. If we move beyond the obvious and outside the anecdotal, we may find that, criticisms aside, we cannot realistically expect the legal community to mobilize for anything other than the narrow agenda of political liberalism.

We may also find that it may make sense to strategically involve lawyers within larger coalitions than to expect them to willingly ally with other constituencies within their parochial associational domain. Ironically, the Movement seems to have increased our dependence on lawyers and judges to deliver justice, as well as to reform that very system of justice delivery.

Put another way, it has increased our reliance on the legal community to reform itself and disempowered other constituencies, including civil society and political actors, to bring about institutional and social change based on broader coalitions and interests.

Ultimately, looking back at the Movement prompts us to ask, what can we expect going forward if we entrust legal actors and institutions with our social and political interests as citizens?

Maryam Khan is a visiting research fellow at the Institute of Development and Economic Alternatives.

This article originally appeared under the title, “Ten years of a movement”, in the March 12th issue of The News on Sunday.