EVEN if not the worst of times, it certainly was not the best of times, as Pakistan suffered another series of tumultuous events, dilating a history that has probably been more eventful than is healthy for a nation. The cast of characters is familiar by now: the people’s conniving representatives, the strong-arm servicemen, and, for our purposes, the zealous adjudicators not to be outshone in any political drama.
Too much stood exposed, or re-exposed. As the former premier engaged in political gymnastics to thwart, not once but twice, the vote of no-confidence, we learned in the process about the constitutional courts’ shadow dockets. The courts sprung into action with the clock ticking its way to midnight on Saturday, April 9, and as it became increasingly apparent that the premier was continuing to dabble in bait-and-switch tactics.
And this could not be allowed. The Supreme Court has since informed the public that it works 24/7, always vigilant, like a hawk, weeding out patent violations of the Constitution. The Islamabad High Court similarly revealed that a petition regarding an extremely urgent matter can be presented at any time. The opening of the courts close to midnight on a Saturday was not really an anomaly, or was an anomaly only in that it happens every time there is an extreme urgency. Or so the courts retorted.
In other words, there is a regular docket of the courts, maintained through filings in accordance with regular rules, for regular litigants and lawyers. And then there is a shadow docket, through which petitions can be entertained whenever the relevant chief justice deems there to be an ‘extreme urgency’. The Supreme Court separately wields its suo motu powers.
Our courts need to devise a mechanism to provide more information.
Not surprisingly, with broad swathes of discretionary powers even otherwise parked with the chief justices of the courts, the shadow docket and its opaque functioning — after the usual working hours and behind closed doors — is said to happen under the watchful eyes of only the chief justice.
The problem with discretionary powers is that they get to be exercised not only by the chief justices one likes, but also by chief justices one may have misgivings about. That one chief justice does not abuse his or her discretionary powers, is not an argument for vesting expansive chunks of unchecked power in that office. Borrowing from another context, the rules of the game have to withstand a Trump, even when they are drafted with a George Washington in mind.
Not so long ago, a well-known constitutional lawyer, Mr Hamid Khan, with an established record of advocating for lawyers’ interests, referred to something he christened the ‘Gulzar doctrine’. Justice Gulzar was then the chief justice of the Supreme Court, and in the words of Mr Khan, certain cases were listed before the Supreme Court, and others were not, depending solely on whose interests would be adversely affected. Put differently, the institution of the case, and fixing it before a bench, according to Mr Khan, were contingent on whether the resolution of the case in one way or the other may jeopardise powerful interests.
The workings of the shadow docket and fixing of cases before benches are matters that go to the very heart of our conception of justice. A lot turns on who is allowed immediate access to the courts, and who is denied all access.
There is a way to deal with these allegations: it is through data. Our courts need to devise a mechanism to provide more information to the public. In the context of the shadow docket, for instance, the courts may divulge information as to how many cases are being instituted in a year after the regular timings of the courts, the causes of action invoked, the litigants and lawyers involved, and the outcomes in those cases. Revelation of data can adequately absolve or, alternatively, inculpate the courts.
Similarly, for fixing cases before a bench, the courts may provide a record, on a regular basis — quarterly, biannually or annually — of how many cases are being instituted, by whom, and through which counsels, the nature of those cases, the number of adjournments and hearings, and the relief sought and given. Patterns only emerge when there is information. Without information, there are only speculations, doubts and rumours, which, even if they cannot be proven, cannot be disproven either. As a non-elected, non-representative branch of the government, it is only through its credibility, moral high ground and neutrality, that the judiciary can exercise the powers that it does. Perception plays a huge role.
Depending on who one asks, the courts’ swinging into action on April 9 was a lesser evil, or maybe something called for. But a fair assessment is only possible, if the courts implement procedures through already laid-out rules and disclose information about its functioning regularly to the public.
The writer is a litigator based in Islamabad.
Published in Dawn, April 24th, 2022