Seen to be done?

Justice being “seen” is as significant as being “done”, and it is where the SC seems to be failing or is...

Sometimes one wonders what is the yardstick by which an expression can be judged to be self-contradictory or paradoxical enough for it to be categorised as an oxymoron; for e.g. “military intelligence” is one, whereas “military court” has not quite made it yet. The distinction is not always crystal clear. Reference to two statements of the past few days provides the context for this musing. The first is the expression of the very literal intention of Mian Nawaz Sharif to establish military courts in Karachi, once he resumes power. The absurdity and non-logic of the statement was such that Nawaz Sharif and his party were quick to provide a context and even a denial of it. I think it is fair to let a statement slide, once it has been rubbished by its maker. The second reference was mildly less obvious, when Ms Asma Jahangir stated that the Supreme Court has towed the line of the “establishment” in entertaining the petition for an inquiry into the memo scandal. The “establishment” is now an accepted euphemism (though not a particularly effective one) for the military high command.

It is the vintage bluntness with which Ms Jahangir put forth the accusations which already have been insinuated to, is what almost takes one’s breath away. Previously we were used to the employment of undergraduate humor and graffiti poetry by Dr Babar Awan to make the point in less certain and certainly less articulate terms. Ms. Jahangir is a deeply serious woman and mandates to be taken very seriously. In any event, the allegations have been made and are fair game now. For the sake of clarity, the allegation is that the judiciary is taking orders from the “establishment” or at any rate giving this distinct impression. It is hard to disagree with Ms Jahangir’s observations.

The depressing thing about the verdict of the memo petition was its predictability. The language and the rhetoric of the Honourable members of the bench disclosed their minds almost at the first hearing. Ever since the restoration there is a tangible impression of self-righteousness and entitlement by the Supreme Court. The mistrust of Parliament, which previously emanated from the GHQ, has now found a more vocal mouthpiece in the Supreme Court. The formation of a judicial commission in the presence of a parliamentary commission should be condemned unequivocally. The idea is viciously anti-democratic. It is not the credibility of the individual members of the Bench or the commission which is under argument here, but rather the principle of bypassing Parliament. Further, the Supreme Court displays an utter lack of confidence in its own subordinate courts by allowing matters to be decided by special commission instead of trial courts. The message conveyed is that while trial courts and investigating agencies are good enough for ordinary cases, they cannot be trusted for the high-profile, publicity hogging, and sensitive ones. Incidentally, the Supreme Court has before it right now a matter where a special procedure for trial was adopted, the Zulfiqar Ali Bhutto reference. Pitting the three honourable members of the judicial commission against a police investigating officer completely misses the point of there being a uniform process of law for everyone.

We have reached a point where we prefer any action, to no action at all. Formation of commissions is the quintessential example of barely any action. Another unexamined claim is that judges are the most upright, incorruptible and sagacious people in this country, hence the tendency to cram all commissions with judges, both serving and retired. Well, there is no evidence to suggest the moral superiority of judges, it would be almost as absurd as accepting the ethical preeminence of accountants. They are specialists at what they do, to remove confusion that being interpreting and applying laws, not solomonic justice. The Supreme Court certainly went beyond that mandate while discussing possible impeachment of the president. The arguments for the current phase of judicial activism advanced by the Supreme Court are unnervingly similar to, if not identical to the argument for military activism.

Hackneyed platitudes like “perception is reality” and “where there is fire there is smoke” etc, inevitably invoked in discussions of politicians, might be of relevance here. If the Supreme Court is not in cohort with the army, it is doing a fabulous job in conveying this impression. The Asghar Khan petition and the missing people’s case etc. have to be boringly demanded again and again, so that we know that there is in fact justice for all. I do not want to diminish the grandeur of the lawyers’ movement or the romance, but whereas the memo case might be the most salient, it is by no means the first example of this tendency of the Supreme Court. However, when one hears the Chief Justice exhorting the “Sipahsaalar”, there is a definite queasy feeling. For one vulnerable moment, the impure, even blasphemous, thought that is it possible that that fight really was about employment when the Chief Justice disobeyed another “sipahasaalar”. Surely not, but the question does not go away easily.

Remaining on lazy maxims, another one is “justice should not only be done but seen to be done”. The “seen” part is as significant as the “done” part, and it is the one where our Honourable Supreme Court seems to be failing or is unconcerned. Most commissions, especially in Pakistan are not known for accessibility and openness. I understand the argument that it is a fact-finding commission and the trial will be conducted later etc. Yet, this is a very shaky start.

The Supreme Court has also decided that the very little criticism of its conduct is in fact too much and is issuing contempt notices to the insolent. The Court cannot expect to take cognisance of and more significantly form “breaking news” every working hour without getting its hands dirty. If the Supreme Court has decided to be an active player in the power struggle, which it apparently has, then it can no longer claim immunity to fair and even unfair criticism.

Published in The Express Tribune, January 8^th, 2012.