Flaying court orders

22 May 2012


– Illustration by Nadir Siddiqui/Dawn.com
– Illustration by Nadir Siddiqui/Dawn.com

In the majority decision rendered by Justice Nasir-ul-Mulk in the prime minister’s contempt of court case, a reference was made to a quotation by the American Justice Robert H. Jackson: “We are not final because we are infallible, but we are infallible [only] because we are final.” (The word ‘only’ was notably omitted in the reproduction of this quotation by the Supreme Court in its verdict).

In Pakistan, this principle no longer applies. Whether for better or worse, the Supreme Court of Pakistan’s decisions ceased to be ‘final’ when an appeal was made to the court of public opinion. Today, a number of television talk-shows, newspaper editorials and armchair analysts dissect and dismember Supreme Court decisions as soon as they are announced. A detailed verdict is ‘breaking news.’ The very fact that this obscure little blog piece appears on the website of an English daily is testament to the fact that the Pakistani public feels entitled to question and comment on judicial determinations made by the apex court of the land.

This point is not lost on the Supreme Court. Day-to-day proceedings are reported as front-page news. Prominent judgments are published immediately on the Supreme Court’s website. When Justice Asif Saeed Khosa placed reliance on his own poetry and that of Khalil Jibran’s in his concurring opinion in the case, he was referring his argument to the court of public opinion. Ironically, it is the court of public opinion to which the prime minister has also appealed (and will no doubt do so again, after his soon-to-be-filed Supreme Court Appeal is determined).

Justice Khosa’s concurring opinion is also notable in this context for another reason. In the latter half of his opinion, he argues that to defy a judicial order is to defy the will of the People, thereby conflating the Supreme Court’s will with that of the People. Though this is a utopian ideal no doubt, it has little basis in reality. In the first place, the Supreme Court itself should not have a will – in theory it should be nothing more than a collection of independently minded individuals trained in methods of legal reasoning. Anything more than that is beyond the ambit of our system of government.

Another reason why this argument is incorrect is because Judges are entirely unaccountable to the public insofar as judicial performance is concerned. Even if one were to come to the conclusion that the public supports the actions of the Supreme Court (a dubious theory – it is not as if judicial decisions are subject to referendum) what would be the outcome if the People were to then, in the future, disagree? It is not as if the Supreme Court could go back and reverse its earlier decision. Nor would it be possible, under the framework of the Constitution, for the People to then express their lack of confidence by appointing a new set of Judges – though the 2007-2008 movement for the restoration of the judiciary appears to be an example to the contrary, it is not. This is so for the simple reason that the example cited has reference to an extreme situation. A People should not have to resort to extra-legal means to express how they wish to be represented.

It also begs recognition that Supreme Court Judges are appointed from a fairly homogenous group, as opposed to being elected by the People. As such, they do not represent any significant cross-section of society. At the outset the Supreme Court cannot claim to represent any more fifty per cent of the population since they are uniformly men. Factor in the reality that Supreme Court Judges are in their late fifties to early sixties, urban-dwellers, and drawn from professional litigators, and you get a very narrow demographic indeed. Thus, it is clear that we cannot expect these individuals to have any grasp of what is high on the list of priorities insofar as (for example) a young woman from Balochistan is concerned.

It is also important to remember that public opinion is fickle. When the erstwhile dictator, General Pervez Musharraf took power, he did so largely with the consent of the People. A decade or so later, he was unceremoniously shown to the door by the very same People who had earlier welcomed him in. Imran Khan, who for many years languished on the political side-lines, is today considered a champion by certain segments (seemingly enough so to garner significantly more electoral success than he has had in the past). Therefore, it is worth noting that when the Supreme Court appeals to the People, it builds a castle on shifting sands. If in the coming year, the PPP secures sufficient seats to form another government (which is a very real possibility), would that not seriously undermine the dignity and authority of the Supreme Court?

The writer is a lawyer practicing in Karachi.

The views expressed by this blogger and in the following reader comments do not necessarily reflect the views and policies of the Dawn Media Group.