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Supreme mess

FOR decades now, the Supreme Court of Pakistan has been lecturing everyone about the importance of sticking to the letter and spirit of the law, of democratising decision-making within institutions, of ‘structuring’ discretionary powers, of taking every possible step to ensure that arbitrariness, or even its hint for that matter, is expunged from the work and conduct of public functionaries.

If only it had ever applied the same metric to itself, it might not be where it finds itself today — caught in a royal rumble for the ages, its internal politics disrobed, with in-laws under surveillance and judges in all but fisticuffs, frothing with resentment and rage, unable even to explain whether they just delivered a politically explosive verdict by a majority of 4-3 or 3-2.

This implosion has long been coming. The history of our apex court inspires no great confidence. Not too far back, it was perceived as little more than a pygmy — an understandable observation, given the glee with which it ratified coup after coup after coup.

The day it finally dug its heels in and refused khaki diktat, it ended up generating one of the most powerful civil movements in the country’s history, which, buoyed by a mushrooming media, resurgent political parties and a flourishing civil society, not only locked horns with a dictator, but ended up making him tap out. Since then, we have had our longest spell of democracy (no matter how flawed or managed or shambolic it has been).

Victorious (and vainglorious) from the fray, this reinstated judiciary took its (rightful) place as the third pillar of the state. But the fanfare surrounding its meteoric rise proved too intoxicating.

Egged on by thunderous applause from pundits of every creed, its chief star, Justice Iftikhar Chaudhry turned Courtroom No 1 into his personal jirga. To dispense justice per will, he invoked the ‘suo motu’ jurisdiction of his court (a judicial innovation unique to South Asia, crafted first by Indian jurists and promptly copied by their Pakistani and Bangladeshi counterparts, which allows judges to take ‘notice’ of basically any issue they deem worthy of their attention). It is a curious power, and while it may have arguable (though rather artificial) benefits, its unfettered use is nothing short of flirting with madness.

And thus began our era — this ridiculous age of juristic acrobatics, performed for an audience, curated for maximum applause, with judges somersaulting from textualism to purposivism to unconscious-ism to convenience-ism to what should now just be called our homemade interpretive blend: constitutional spiritualism.

The Chaudhry court dabbled in everything from celebrities and their liquor bottles to international agreements like Reko Diq (later a multibillion-dollar liability). Justice Nisar’s mighty gavel fell on hospitals, fake degree scams, VIP culture, adulterated milk, water woes, not to mention his pet fund-a-dam campaign that spent Rs13bn on promotions while collecting Rs9bn in donations. His next-in-line decided to lead a crusade against Karachi’s municipal problems.

Saviours are obsessed with legacies. Hence, calls for restraint and reform were snubbed.

Amidst this legal jugglery, two PMs were sent packing, one for not writing a letter, and the other for not declaring an unwithdrawn salary. The festering wound that is Balochistan, the army’s (now self-professed) political engineering, the immunity of intel agencies, and countless less apparent but no less systemic human rights violations — all these things went unnoticed, as of course did the screams of millions of litigants being crushed to a fine powder beneath their honourable noses.

Meanwhile, established precedents were wrecked, judges started trekking way beyond the matters pending before them, and our perception of the superior judiciary warped — from legal interpreters, to valiant saviours.

But saviours are obsessed with legacies. Hence, calls for restraint and reform were snubbed, and every effort to create transparency rebuked. When the 18th Amendment tried to carve out greater space for parliamentarians in judicial appointments, a full court ‘advised’ parliament to ‘reconsider’ the wisdom of its two-thirds majority.

The 19th Amendment acquiesced; the legislature was reduced to rubberstamping. Later jurisprudence reinforced this, whilst cementing further power in the chief justice. And so, the higher judiciary remained an elite and unassailable club, accountable to none but its own peers. Today, it is aborting bills that pose no discernible threat to either its powers or its independence.

Fascinated by the liberties taken by the SC with Article 184(3), high courts have begun toying around with Article 199. A justice in Lahore is on a Captain Planet-inspired mission to singlehandedly save Punjab from smog — he’s fidgeting with traffic fines and ordering markets and schools to open and close at times of his choosing.

A similar itch once forced his brother judge to direct petrol pumps to refuse service to motorists without helmets. And some time ago, a justice in Peshawar decided to ban export of dairy and poultry products, perhaps if only to remind us that other provinces are not immune. Showmanship is always inimical to the rule of law.

Lastly, as dangerous as politicisation and overreach is, it is not the most serious problem. Here’s the real kicker — for the right amount of money, you can apparently get your case fixed before your favourite justice in the Lahore High Court (sources who obviously wish to remain anonymous inform me that the going rate is anywhere between Rs90,000-Rs150,000). Knowing the judge is no legal strategy, but it surely is a far superior one. At the district level here, things are even simpler.

The staff of the diary branch has begun asking people very matter-of-factly: “kidday kol lana vay?”. Name your judge, and I assure you they will happily oblige. Money is not required, because for some reason (likely bar thuggery), this service is available as a ‘right’.

This is the true state of our judicial system. A mess of some very supreme proportions. Perhaps it is time for a full court meeting after all? Their lords-and-ladyship should sit together — as equals — and decide their future course by majority. Accountability must begin at home. Elections must always happen at their constitutionally designated times.

The powers of chiefs to allocate cases and take suo motu notices willy-nilly must be clipped. And the demystification of judicial processes, especially appointments, must never be resisted again.

Thankfully, none of these demands are mutually exclusive. Let them happen simultaneously, and let history be the judge of those who attempt to obstruct them.

Asfand Yar Warraich, "Supreme mess," Dawn. 2023-05-08.
Keywords: Law , Law and ethics , Law Enforcement , Law reform , Lawmaking