A ‘HIGH-LEVEL’ mission sent by the International Commission of Jurists, based in Geneva, recently came out with a public statement that was met by a diligently prompt rejoinder from the registrar of the Supreme Court.

It is only expected that the debate focusing on the court’s suo motu powers will continue for some time, as indeed it should and has been since the Pakistan Steel Mills case of 2006.What is problematic in this particular episode, however, is the hasty and unprofessional manner in which the ICJ mission conducted its task. The news of the ICJ’s press conference took many of us by surprise.

The reason why the views of jurists command widespread respect, and even allegiance from their followers, is that they are supposed to be based on a careful and thorough methodology. A good jurist is generally a man of silence, trained to keep his views, even those correct and firmly held, to himself until he has examined the matter at hand in full detail and impartially.

Only when he achieves moral certainty about the truth of his views does he venture to express them. And by then they are often so compelling that even his critics (the honest ones) cannot help but agree. Every jurist may not be able to live up to this standard, particularly in times of daily calamities when quick counsel is oft needed. But a sorry day it would indeed be when our jurists even cease to aspire to this ideal.

When the ICJ’s mission embarked upon its mission, many fond hopes were tied to it. Have we not had enough of ill-informed and amateurish TV anchors tendering opinions on sensitive and complicated legal issues such as that simple but significant question: is the omnipresent Supreme Court overstepping its jurisdiction, and trespassing in territory that belongs to the executive?

The hope was that the ICJ’s jurists would work however long and however hard it took to tender a juristic view on the point, a view that would be clear and well-documented. Alas, no later than six days into their mission the patience of the ICJ’s ‘jurists’ ran out. The worst that the cynical amongst us could have anticipated was that the mission would give an ‘interim report’ which would be a mere repetition of the prevalent ‘talk of the town’, not bothering with any path-breaking research.

But the ICJ mission managed to startle even the cynics when it came out straight with a short ‘press conference’ — with ex-judges sitting like politicians in front of cameras and mikes, delivering their less than two-page critical ‘judgment’ on the issue. It was by all means a major letdown.

Our Supreme Court has been accused, perhaps not too unfairly, of having become a little too media-oriented, neglecting the ancient rule of judges speaking only through (meticulously argued and documented) judgments. But if the ICJ’s ‘judges’ are any standard to judge against, we are still in safe hands!

The problem is not that the ICJ has proffered a critical view of the Supreme Court; so many have expressed the same views in the past in this paper. The problem is that we had reason to expect much more of the ICJ. For instance, they could have pursued the following ‘case law’ methodology.

Firstly, clarify your own understandings about the rightful distribution of powers amongst the three organs of the state and give your reasons (theoretic as well as practical) to justify these views vis-à-vis the court’s own theory propounded in a series of judgments since 1988.

Secondly, identify all suo motu cases the Supreme Court has taken up and decided in the last few years and, if it is not possible to examine all draw a representative sample.

Thirdly, judge each elected case against your own yardstick and identify all cases, if any, which signify a transgression of jurisprudence according to this analysis.

Finally, determine if the ‘transgression’ cases are so significant in number or impact as to warrant a change in judicial policy.

Conversely, if it was public opinion that the ICJ was looking for, then it should have stuck to that and done it properly, perhaps by commissioning the already existing professional pollsters in Pakistan.

The ICJ, however, chose to adopt no methodology at all — preferring instead to just latch on to existing views circulating amongst certain circles in Pakistan whom they met and whose mouthpiece they let themselves become. It is only fair then that their views have merited refutations and are being treated with scant respect.

All this critique of the ICJ does not, of course, absolve our own jurists, the Supreme Court included, from their share of blame.

If the public is ever to get a truthful answer to the question identified earlier in this article, then both our judges and legal academics would need to put their act together. Perhaps the Supreme Court should consider commissioning a team of our own reputable Pakistani legal academics and jurists to conduct a study — providing both the funds needed and access to archives — and then submit appropriate suggestions. Only on the basis of such empirical and honest research can we find a way out of this debate, which will otherwise go on to become messier and unproductive by the day.

Much as it seems natural today, Pakistan could not have found its way out of the Musharraf mess without the leadership shown by the present Supreme Court. Posterity will thank you for that, My Lord the Chief Justice. But if our legal system is to similarly get out of its own equally messy state, and even messier debates, a similar lead is needed.

Truth is what we are all out for. The ICJ mission, in its six-day walking-talking tour, has not come out with it, but it doesn’t mean that we have found what they came looking for. That effort is yet to be made and, perhaps once again, we need you to take the first step.

The writer is a lawyer based in Islamabad.

sbmirza2@gmail.com