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Politicisation of courts

Updated December 17, 2017


IT is an extraordinary riposte to perceived critics by the chief justice of Pakistan and it deserves to be analysed carefully.

A day after declining to derail PTI supremo Imran Khan’s political career but knocking out PTI secretary general, Jahangir Tareen — who has since resigned from the post — from electoral politics, Chief Justice Saqib Nisar has lamented the politicisation of the superior judiciary by sections of the media and the political class.

According to him, while his court is working hard to provide justice according to the letter of the law, some judgements are being viewed unnecessarily through a political prism. In today’s fiercely divided polity and media, that perception is damaging the court’s stature and position as a neutral arbiter.

His bluntness is clearly rooted in a great deal of truth. The febrile political atmosphere in the country and no-holds-barred commentary in some sections of the media have reduced complicated legal questions to perceptions of which political party benefits or loses from a particular decision.

The judicialisation of politics here is an emerging reality, however, that all sides and institutions need to consider carefully. Once the judiciary is approached in a matter that is clearly justiciable and within the jurisdiction of a court, the latter cannot simply turn away petitioners because of possible political ramifications.

But the superior judiciary may want to consider being more mindful of public perception and issue judgements that are well argued, firmly rooted in the law and establish good precedents.

Where there is a coincidence such as on Friday when verdicts concerning Shahbaz Sharif and Imran Khan, seen as potential prime ministerial candidates, were announced, political speculation is inevitable, though not necessarily worrying as it quickly dissipates. But in the Panama Papers case, for example, there was far too much controversy and inconsistency.

No legal purist could have been fully satisfied with the court’s reasoning and some of the obiter remarks by the bench were unnecessary.

A newfound enthusiasm for invoking constitutional disqualification clauses against the elected representatives ought to be revaluated by the judiciary that cannot be expected to disregard constitutional clauses simply because they may stir political controversy. However, it is possible to make a case for reading disqualification clauses narrowly.

In a previous era, the superior judiciary itself noted that were some of the disqualification clauses to be interpreted broadly, virtually no one would be eligible to be the people’s representative.

The Supreme Court is large and diverse. All the justices do not necessarily have to agree on every point; intra-court dissent can be helpful in building a stronger judicial institution.

Perhaps, however, the court can consider why seemingly similar cases are yielding opposite decisions. The Supreme Court is integral to a healthy, functioning democracy. There is no harm in a bit of introspection.

Published in Dawn, December 17th, 2017