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Not above the law

August 13, 2013

IN recent weeks, the superior judiciary of Pakistan, and indeed the chief justice himself, has come under unprecedented attack.

The charge appears to be not only that the judiciary has interfered with the independence of the Election Commission of Pakistan but also that it has done so to grant a particular favour to the Nawaz Sharif government.

The timing of these accusations is almost as interesting as their content. For more than six years, politicians, commentators and the public have been largely content to allow the judiciary to have its way, ostensibly in the exercise of its independence. What, then, has changed now?

I suggest that three things have changed: the political circumstances in the country, the level of awareness of the people and the attitude of the judiciary itself.

In 2007, when the lawyers and civil society took to the streets, they were ready to be rid of Musharraf. The independence of judiciary —whilst it may have been an aspiration for some — was on the whole, merely a convenient slogan to rally the masses.

Indeed, people had no reason to expect independence from the judiciary. The Zafar Ali Shah case, in which the chief justice himself (sitting as a junior judge in a larger bench) had validated Musharraf’s 1999 military takeover, was still fresh in the minds of the public, as were oaths under successive PCOs and countless cases in which the judiciary had voluntarily sacrificed its independence at the altar of expediency.

Granted, the chief justice’s stand against Musharraf was an indication of hope, but it was still not a guarantee that the judiciary would, in the future, act in accordance with its constitutional mandate.

The political situation today is in stark contrast with that of 2007. Pakistan has witnessed a democratic government complete its term and a relatively smooth transfer of power. It has also watched an army chief exercise restraint and a judiciary act independently of the executive.

The judiciary has demonstrated its power by holding a sitting president under constant threat of criminal proceedings, ousting a prime minister on charges of contempt and summarily invalidating a large number of government orders on the grounds of unconstitutionality.

Whilst the country has been supportive of the actions of the judiciary, in large measure because it perceived the Zardari government as corrupt, in undergoing this process, it has developed an understanding of the concept of trichotomy of powers and a greater awareness of the different roles of state actors.

The most significant realisation has been that judicial independence is not an end unto itself and must be exercised for the creation of a more just society. Interestingly, the superior judiciary has attempted to meet this expectation by taking up cases and passing orders likely to appeal to the populace.

Some argue, however, that these decisions have done more to enhance the image of the superior judiciary than to benefit the common man. Had the judiciary truly been interested in working for the people, they say, it would have strengthened the lower judiciary, before whom the majority of litigants commence their cases, rather than simply addressing the concerns of the few who either approach the Supreme Court directly or whose cases are taken up by the Supreme Court in exercise of its suo motu jurisdiction.

Under the Constitution, the superior judiciary, and the chief justice as its head, is responsible for the lower judiciary. And whilst each year at the annual judicial conference, the superior judiciary reports an increase in the number of cases disposed of by the lower courts, the fact remains that it has done little to genuinely improve their performance.

District and sessions judges complain about being under tremendous pressure to dispose of cases merely to swell numbers; of poor and insufficient infrastructure support and abuse at the hands of lawyers who have become increasingly politicised and belligerent.

This neglect of the lower judiciary translates directly into the neglect of the common man, who is, unsurprisingly, fast tiring of headlines that proclaim the prevalence of complete justice in the country.

The most significant change, however, has been in the attitude of the judiciary itself, which appears to have traded in any semblance of humility for high-mindedness.

After the restoration of the chief justice and the ouster of PCO judges, lawyers and the public expected that the superior judiciary would have learnt two lessons: one, that taking the part of the executive or the army would earn it neither respect nor security and two, that it should keep a rigorous check on its own activities so that no one could question its integrity in the future.

These two lessons are important given that the judiciary acts not only as the gatekeeper against potential excesses of an overreaching executive but also as a lawmaker, albeit one lacking a democratic mandate. It is this second aspect of its role that makes judicial accountability an absolute imperative.

It seems, however, that whilst the judiciary has taken its independence to heart, it has failed to unequivocally demonstrate its commitment to the corresponding principles of judicial accountability.

The superior judiciary has the option of creating high standards of accountability amongst its ranks, by devising internal mechanisms for assessing the quality and direction of its judgments and, in extreme cases, by invoking the Supreme Judicial Council.

Instead of doing so, however, it has preferred to ride the wave of its 2007 glory. It has increasingly isolated itself from its critics, and has therefore remained unaware of the growing unrest amongst the very public whose rights it professes to uphold. The judiciary may even now remind itself that that true and lasting legitimacy is only possible through a proper balance between independence and accountability and that its strictures to other state actors to act within their constitutional limits are only meaningful if applied equally strictly to itself.

The writer is a barrister.