Judge in own cause

Lawyers’ movement, restoration has embedded feeling of public representatives in judiciary, which has to be fought off

As we wait for the other shoe to drop in the Prime Minister’s contempt proceedings there is continuing talk in elevated and high minded tones of ethics and how statesmen conduct themselves in mature democracies, etc. The gist of all of this is the rather plain notion that the Prime Minister should now resign from office on moral grounds. There is nothing inherently unreasonable in the demand if viewed in isolation; however, it should not and cannot be viewed in isolation.

The Chief Justice of Pakistan recently made the public statement that for hearing the appeal of the Prime Minister’s conviction, a larger bench has to be constituted and three judges of the Honourable Supreme Court have displayed the intention to recuse themselves necessitating the appointment of one regular and two adhoc judges to the Court. Again there would have been nothing wrong with this statement but for one minor problem, namely no appeal has been filed yet. Actually in the case of this particular statement it is not a minor problem but rather a fairly major one. Firstly, the anxiousness displayed by the Chief Justice to get everything in order before a detailed order has been made public and mentioning the need to appoint adhoc judges to hear the case, one might say — with caution — is unbecoming. Secondly, since no matter is pending before the Supreme Court the consultation or perhaps, more accurately the inquiry would have been made from judges who intend to recuse themselves outside of the court. Whereas some might take a favourable view of the Court and the Honourable Chief Justice working overtime, there is something that makes one uneasy.

Finally, there is the obvious and what one felt was already-decided question of adhoc judges. The practice of appointing retired judges to the bench on extension is a thoroughly graceless one and should be very strongly discouraged generally, and particularly, in cases such as the Prime Minister’s contempt appeal. The impression that the Chief Justice wants to handpick his loyalist judges, even if retired, to hear a matter where the Court is quite evidently one of the parties to the dispute might be completely untrue, but why give that impression in the first place? The Chief Justice, I believe, was aware of this and had to punctuate his statement with the apologetic yet robust assertion that he is constitutionally empowered to do so. The complete absence of any dissent on any of the constitutional cases is quite remarkable, even fantastically incredible. Not one judge in these four years has disagreed on a single point of law in a major constitutional case; this convergence of opinion should make us slightly wary. Hence, the sceptic might say that this fuss about number of judges etc is unnecessary since only one judge is all that is really required, the rest just have to sign the dotted line.

There are two possible explanations for this front of solidarity. Firstly, the Honourable Judges trust the wisdom of the Chief Justice uncritically with almost a military-like discipline (no innuendo intended) or perhaps, are too overawed or at the risk of crossing a red line are afraid of him. Tempting and dramatic as it is, I don’t think that explains the whole story. The second and more likely explanation is that the Supreme Court feels it has to present a united front if it has to tackle and defeat a government, which the Court quite evidently feels to be corrupt and incompetent and keeping in view the Memogate proceedings, ‘unpatriotic’. I am sure they are driven by the most noble of motivations yet ‘unbiased’ does not seem to be a usable word here.

One thing that our Supreme Court cannot be accused of is suffering from an excess of modesty. The desire to set everything right (excluding only ‘sensitive’ matters involving military high command) while being nominally laudable is almost without exception an extremely dangerous one. The lawyers’ movement and restoration has embedded a feeling of public representatives to the judiciary, a feeling that now has to be fought off. Protests in favour of the Supreme Court and vowing to stand behind it at every instance should be of concern. I agree the same concerns should have been raised and properly addressed during the lawyers’ movement; in any event they need to be addressed now. The lawyer community is not the foot soldiers of the judiciary and should not seek to be a part of every minor institutional balancing exercise.

I have a feeling many fellow lawyers don’t bring most of this up because of the fear of being labelled as an apologist for the Prime Minister — banish that thought, one can want the PM to resign and still feel that some actions of the Court cannot be termed ‘proper’. My objective here is not to put up a defence for anyone, yet I hope it is not too much to apply same standards of propriety and morality on all institutions across the board. The hatred and contempt displayed for judges who took oath under the PCO makes one slightly queasy especially when it comes from those who not so long ago committed the same folly. The army and the intelligence chief remain secure in their jobs with no clamour for resignation after the most horrendous of failures. The argument should not be misinterpreted as advocating lowering of standards for everyone but precisely the contrary. The slightly clichéd precedents from Roman and British democracies would seem more relevant and sincere if resort is also made to the even more clichéd phrases such as  “a judge speaks only through judgments” or the puritanically phrased “sober as a judge”, etc.

One expects the realisation is present of what is really at stake here. The employment of the incumbent Prime Minister is not the significant issue; the real contention is, are we willing to relax the rules and compromise the perception of impartiality, even if driven by good faith — actually especially if driven by good faith. The answer should be a categorical and resounding ‘no’.

Published in The Express Tribune, May 6^th, 2012.