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The Supreme Court debate

The emergence of a powerful Supreme Court of Pakistan has given rise to a continuing critical debate about the Supreme Court’s functioning and its various judgments.

Questions have arisen: is the Supreme Court encroaching upon the domain of the executive and legislature and violating the separation of power doctrine? Should judicial restraint be exercised? Before holding other institutions accountable, shouldn’t the Supreme Court first concentrate on rectifying the problems faced by the superior courts and the lower judiciary especially the problem of delayed justice?

The above critiques are based on three schools of thought. Firstly, there is the legal/jurisprudential critique based on the premise that the Supreme Court is acting contrary to its constitutional role. Secondly, the political critique is based on the premise that the Supreme Court is trying to take the place of the government and legislature. Thirdly, there is the moral critique based on the premise that the Supreme Court and its judges are not accountable and their presumption of institutional superiority is allegedly highly questionable.

But the above critiques suffer from a conceptual flaw — understanding must precede critique. In other words, we need to first understand the nature of this ‘new’ Supreme Court, why has it developed in this way and what are the future judicial trends. It is only then that we can begin to understand both the validity and limits of any critique.

The contours, causes and consequences, of this ‘new’ Supreme Court can be described as follows: Power: Critics who emphasise the lack of judicial restraint on the part of the Supreme Court view the latter as being engaged in a ‘power grab’. But this begs the question: should, and can, the Supreme Court be interested in not consolidating and increasing judicial power?

It is, and will, continue to be interested in power because, firstly, the court is seeking to implement a reform agenda through its ‘law model’ and such a reform agenda cannot be implemented without increased power.

Secondly, the lawyers/judicial movement created an opportunity for consolidating, and increasing, judicial power and the Supreme Court is utilising such opportunity. This opportunity is further increased in the presence of a cautious political elite and a defensive military elite.

Thirdly, powerful institutions are interested in power because power is the engine of institutional growth. Individuals as well as institutions will not voluntarily decide to give up power unless forced to do so.

Law model: Like communism and capitalism, the belief that complicated state and societal problems can be solved through legal rules, constitutionalism and judges is really an alternative practical political philosophy.

In the battle of ideas in Pakistan, this “law model” is opposed by the “negotiation and compromise” model of the political elite and the “use of force and enlightened authoritarian” model of the military elite. It is too early to predict the consequences of this simplistic judicialisation of complicated political, economic, social and cultural issues. Or as Isaiah Berlin would say, the “unknown consequences of consequences of consequences” are difficult to predict.

Reconceptualising the separation of power thesis: It is difficult to deny that the Supreme Court, on various issues, is playing the adjudication, executive and legislative role. But this non-constitutionalism is normal in Pakistan because neither the military establishment nor the political elite play their constitutional roles.

In this transitional democratic phase, the de jure separation of power doctrine has been replaced by the de facto sovereign system run by these three elites i.e. political, military and the judiciary, and the respective power of each of these three elites is the only check on these elites. This sovereign system will eventually lead to a de facto reconceptualisation of the separation of power balance in Pakistan.

‘New’ judicial roles: It is naive to think that this ‘new’ Supreme Court would disappear in a post-Iftikhar Chaudhry era. An examination of the judgments of other judges of the court e.g. of Justice Jawwad Khawaja, Justice Khilji Arif, Justice Azmat Saeed, Justice Asif Khosa, shows that this court has been transformed.

For example, if Chief Justice Iftikhar Chaudhry’s judgments are examples of the sheer will power of the Supreme Court then Justice Jawwad Khawaja’s judgments show the broad vision behind that will, which is tempered by the pragmatism of Justice Khilji’s judgments. Even a cautious liberal like Justice Tassaduq Jillani, in his ‘Cutting of Trees’ judgment, has come up with a new concept of suo motu judicial activism, which contains within it a sophisticated notion of judicial restraint.

‘New’ jurisprudence: The ‘new’ jurisprudence of the Supreme Court can be described as “judicial pragmatism based on public legitimacy”. There is no desire to lay down theoretically consistent legal theories or precedents but rather there is an emphasis on problem-solving of macro and individual issues having positive consequences for the public i.e. positivity as perceived by the Supreme Court. In short, the “domination of lawyers” has given way to the “domination of public legitimacy” in Pakistani legal doctrine, with unknown consequences for the legal system.

Public legitimacy and media: If public legitimacy is the new source of judicial power of the Supreme Court, this public legitimacy is perceived by it through the prism constructed by the media. This dependence of the Supreme Court gives the media the power to manipulate the court’s public legitimacy agenda. Therefore, the inclusion and exclusion of any major issue, or any particular solution, in the Supreme Court agenda will be heavily influenced by the media. But it is naive to think that the court can easily avoid this media presence and still retain its present judicial power.

Price of independence: The appointment and removal of judges and monopoly over constitutional interpretation, has been handed over to the judiciary itself in order to safeguard the independence of the judiciary from any threat from the political and military elite. Therefore, the irony is that in the short term, the price of achieving judicial independence will be the lack of any real accountability of the superior judiciary.

Justice from above: The lower judiciary, especially the criminal justice system, has collapsed in Pakistan. The truth is that there is no immediate solution to this problem. Therefore, the direct interference of the superior courts in lower judiciary matters will consistently increase because of the persistent demand for speedy justice.

Any societal/judicial change is a package deal, which contains within it excellent, average and unacceptable elements. Or as Kant noted, “Out of the crooked timber of humanity no straight thing was ever made.” Therefore, any critique of the Supreme Court has to be built on this fundamental realisation.

The writer is a lawyer.

Faisal Siddiqi, "The Supreme Court debate," Dawn. 2013-02-18.