THE Election Commission of Pakistan should not have abdicated responsibility.
It should have definitively fixed a date for the presidential election, passed a reasoned order in response to the PML-N’s application seeking a date change on religious grounds and defended its position in court.
But notwithstanding the ECP’s failings, what the Supreme Court did was inexplicable. As the repository of infallible wisdom it instantly passed an order without even bothering to hear other interested parties. The manner in which the Supreme Court assumed jurisdiction and summarily exercised it highlights the apex court’s mindset under Chief Justice Iftikhar Chaudhry.
The question is not whether the court is pro PML-N, but whether its perception of its own role and jurisdiction is leaving any room for it to function as a neutral arbiter of the law.
Leaving the good aside and at the risk of offending the mighty lords (and one’s livelihood as a lawyer), a few traits are evident in the manner our apex court has conducted itself since Chief Justice Chaudhry’s restoration that raises concerns about the quality of justice being meted out: populism; overt moralism; appropriation of functions of other institutions; and subjectivity injecting lack of consistency in the law being developed.
The populist streak first manifested itself when the Supreme Court suspended the carbon surcharge on petroleum products imposed by the Finance Act, 2009, and has gained momentum since.
Having been restored through a street movement, the Supreme Court leadership seems to view itself as a people’s court in two senses: that it shares representative credentials of an elected government; and that it must satiate public expectations by coming to the rescue of people whenever they feel wronged even if the matter involves non-justiciable political questions.
None of the modern democratic constitutions make the judicial arm of the state directly accountable to the masses.
Given that democracy is run by majority rule, it is the judiciary that acts as a safety valve and guards against tyranny of the majority by upholding fundamental rights even when a transient surge in popular opinion militates against such a role.
A politician might be beholden to popular opinion if lacking in foresight and the ability to build opinion instead of following it. But a judge is required to decide legal questions without taking into account considerations of fear or favour.
Popularity when actively sought is a consideration of favour. Judicial codes of conduct everywhere, including in Pakistan, require judges to eschew publicity and exposure to public. Is there another country in the world where the court dominates daily news feed?
Unfortunately a two-way demand-supply relationship has evolved between our media and the Supreme Court: the court creates news which the media reports prominently every hour and generates more demand for Supreme Court intervention; and the media appeals for the court’s intervention after breaking a scandal which then leads to more suo motus. It’s a vicious cycle. The Supreme Court’s populism seems to go hand-in-hand with moralism. Are courts supposed to be courts of law or enforcers of moral virtue? The question is not whether morality is desirable or not, but whether it is for the court to enforce morality or view itself as a social reformer and cleanser of vice.
Forget the sermons during court hearings that become headlines. Just read judgements from the last four years and you will find them littered with moral lectures that might have little or nothing to do with questions of law that form the subject matter of the case in hand.
This populism and moralism then encourages the court to not worry excessively about restraints embedded in the letter of the law, but focus instead on ‘doing good’. And thus we see exercise of suo motu in a manner that interferes with the role and function of other institutions.
Once the court takes suo motu cognisance of a matter based on press reports, it has already developed a prima facie view that a wrong has been committed that requires court intervention to be set right.
How can the court sit with an open mind and give parties a fair hearing as a neutral arbiter once it has already decided to intervene to correct a perceived wrong on the basis of media reports? What we end up witnessing is simultaneous judicial and media trials. Take the Employees Old-age Benefits Institution (EOBI) scandal.
If you sat in Court 1 during the first hearing, the bench knew from the word go that all involved were guilty and the only question was how they were to be arrested and the loot recovered. What about impartial determination of facts or recording of evidence etc.? Corruption is a cancer that must be removed surgically. But will culpability be determined on the basis of media reports? Defence Housing Authority and EOBI officials might be of the most rotten variety. But isn’t the right to a fair trial a fundamental right of all, including criminals?
Who will uphold it once the Supreme Court wipes out any distinction between the accused and the guilty? Can the Federal Investigation Agency dare furnish a report that refutes conclusions the court has already drawn?
Can a prosecutor refuse to file a case because he believes there isn’t enough evidence? Will a subordinate court grant bail to any accused after a suo motu?
What kind of justice is produced when the Supreme Court becomes investigator, prosecutor and adjudicator all at once? And what about consistency and lack of partiality in applying the law and principles?
If Musharraf is to be tried for high treason, why should judges who abetted him be retired with full pension and benefits? If use of all public funds is to be audited and scrutinised without exception, why is the scrutiny of Supreme Court expenses an exception? Should there be one set of principles for rehiring civil servants and another for rehiring officers that serve in the court registry?
Let us hope that post-December the Supreme Court’s new leadership will review the courts relationship with the media and the bar and rebuild its self-image as a neutral arbiter of the law as opposed to being a dispenser of morality and populism.
The writer is a lawyer.