The elections to the Supreme Court Bar Association
(SCBA) were held this past week. Like the other 2,000 or so members, I
was inundated with SMS messages requesting me to “vote and support”
candidate X. On some days, I got more than 50 such messages. Some of the
hopefuls even went to the trouble of calling me. A determined few went
further and showed up at my office.
At the same time, despite the intensity of the campaigning, not a
single candidate for a single office of the SCBA made any substantive
promise. No manifestos were printed. Certainly, none were distributed.
No one tried to win my vote by saying that they would seek to improve
the problems faced by those who actually argue before our country’s
Supreme Court. Instead, to the extent anybody bothered to make a pitch
for my vote, it was based entirely on relationships: vote for my friend,
vote for my cousin, vote for my political compatriot.
Lest you think this is not a big deal, let me explain. For at least
the past two decades, and more specifically over the past five years,
the SCBA has been one of the more important political organisations of
this country. When the Chief Justice was removed by General (retd)
Pervez Musharraf on March 9, 2007, the movement for his restoration was
led in part by Munir Malik, the then president of the SCBA. Munir Malik
was succeeded as president of the SCBA by Aitzaz Ahsan, the lawyer for
the Chief Justice. Aitzaz Ahsan then led the second phase of the
lawyers’ movement against the imposition of Emergency by General (retd) Musharraf on November 3, 2007,
which eventually resulted in the restoration of the Chief Justice and
the other ousted judges. Even today, while the bar associations of the
various High Courts and district courts remain independent and very
significant entities, the SCBA occupies a privileged position in the
legal fraternity by virtue of its connection with the apex Court.
There is also no shortage of issues for the SCBA to discuss. The
tenure of the current chief justice has seen an unprecedented expansion
in the role of the Supreme Court. The Court has become completely
identified in the public eye with an aggressive commitment to public interest litigation,
a development which is highly debatable, both in legal and political
terms. As professionals who practise at the Supreme Court, SCBA
candidates should obviously have a position on this issue just like they
should have ideas on how to deal with the massive backlog of cases in
the Supreme Court. But none of the candidates bothered to express any
thoughts on these issues to their voters.
Entry into the SCBA requires 10 years of practice at the High Court
level followed by a rigorous interview and selection procedure. Members
of the SCBA can therefore — with some justification — regard themselves
as the cream of Pakistan’s legal crop. And yet, I repeat, not a single
candidate in the SCBA elections bothered to make any substantive
argument. More significantly, I seem to be the only person bothered by
this omission.
My question is this: if the elections to an elite body of highly
skilled professionals are to turn on nothing more than personality
issues, what hope is there for the rest of this country? We hear so
often that democracy cannot flourish in a country populated by poor
illiterates but the membership of the SCBA is neither poor nor
illiterate. We hear equally often that the only cure for bad democracy
is more democracy. The SCBA has been holding annual elections for
decades. Why, then, do the SCBA elections present the same sad picture
as our political process?
Charlie Munger, Warren Buffett’s partner and a business legend in his
own right, argued some years ago that while Gresham’s law had become
obsolete in terms of currency, it could nonetheless be applied to
societal mores.
For those not up to date with economic theory, Gresham’s law
is the contention that bad money drives out good. In other words, if a
state starts diluting the amount of precious metal in its coins, people
will start hoarding good coins and only using adulterated coins.
Munger’s variation of Gresham’s law is that bad morality drives out
good or, in other words, that public morality is in a race to the
bottom. Once one person cuts corners, everybody else starts cutting
corners too because that is the only way to survive. Pretty soon, there
is nobody left who does not cut corners.
What, then, is the solution? Munger does not spell it out, but the
answer lies in the works of Charlie Frankel, another thinker quoted by
him during the same lecture. Frankel was an American philosopher and
humanist who argued that systems of government were “responsible” in
direct proportion to the degree that the people who made the decisions
bore the consequences. At least to my mind, that simple argument
explains more about Pakistan’s current state than all of the books
titled using some variation of “The World’s Dangerous Country”.
Coming back to the topic of this column, I am forced to concede that
the SCBA has become what it is because of the apathy of lawyers like
myself. Put simply, SCBA candidates do not care about substantive issues
because lawyers like myself do not force them to care. Well, starting
today, that is going to change.
The next SCBA elections are exactly a year away. More importantly,
the SCBA membership is small enough that even blocks of 10 or 20 voters
count significantly. Assuming I can round up at least 10 votes, the plan
is to put together a set of policy reforms and see if we can get any of
the major candidates to bite. It may or may not work. But at least I’ll
feel better when the next SCBA election comes around.