Supreme misjudgements

Institutional evaluation must be done relative to institution’s own performances, performance of other institutions.

In judging the judiciary, one can review Supreme Court (SC) judgments in specific cases for their fairness, independence and proportionality. However, one must also undertake a deeper analysis of its strategic focus given that the number of important cases emerging in most countries exceeds the SC’s ability to handle them. Hence, superior courts must always decide which cases to pursue and which to ignore. In short, they have to pursue justice selectively.

With the military’s 1999 transgressions and their judicial validation, the judiciary let bygones be bygones. This decision was actually taken by the 2002 rubber-stamp parliament that had emerged from rigged elections. However, as the chief justice recently remarked, courts can nullify unconstitutional legislation. But the courts did not nullify this indemnity for good reasons. The courts had made major amends through their 2007 struggle, while the military had made some amends by allowing free elections in 2008. Thus, charging both for past transgressions when they had made subsequent amends was inadvisable given the risk of undermining the system. In trying political actors, one must apply both legal and political lenses, so long as doing so primarily benefits the country and not the actors.

However, this logic should have also extended to the financial misdeeds of politicians who, too, had shown some remorse and had promised to perform better in the future under the Charter of Democracy. Leading politicians had also spent years in jail, often without conviction.

Moreover, the people’s court forgave them their past financial misdeeds by re-electing them in 2008. While none of this provided legal amnesty, a political basis existed for forgiving past political corruption and focusing on fresh transgressions, as for the military. However, for politicians, the courts chose to pursue the past.

Courts usually focus on the constitutional and criminal transgressions committed by individuals. However, they have the right to ensure that all constitutional provisions are enforced. This role gives them the right to intrude in administrative matters and institutional tugs of wars where fundamental public interests are involved. In pursuing cases ranging from sugar prices to the memo case to the overall security situation in Karachi and Balochistan, the SC has significantly enhanced its scope, but without providing a clear strategic framework for evaluating its choices. Thus, both temporally and substantively, it has often appeared unfocused, overstretched and often ineffective.

Shifting gears to specific cases, the most controversial one, perhaps, has been the Swiss case. Beyond the SC’s decision to pursue it rather than consigning it to historians, its handling of the case has been puzzling, as it has failed to explain why the matter must be pursued even though President Asif Ali Zardari enjoys immunity. If it feels that the immunity is not absolute, why not pursue the case itself? To disqualify an elected PM, however, poorly-performing, for not writing a letter to another court for a case which the SC is not pursuing itself and in which the PM is not even involved directly seems disproportionate. An elected PM should only be dismissed judicially if they commit major crimes themselves. The only reason this dismissal has not derailed Pakistan’s fragile democracy is because the PM is a figurehead presently. Perhaps, this fear of derailing the system discouraged the Court from trying President Zardari directly. However, even so, this proxy targeting by dismissing the PM makes little sense.

However, all institutional evaluation must ultimately be undertaken relative to the institution’s own past performance and the current performance of other institutions. On both counts, the current SC scores highly. Unlike past courts, the current SC has fiercely established its independence. While other institutions, e.g., political parties, media and the military, still commit major constitutional and criminal transgressions, the SC at worst now merely sometimes displays imperfect judgment. Viewed so, the higher judiciary is far ahead in the transformation from the inefficient and politicised institutions that have existed within Pakistan to date to the merit-oriented institutions that it needs in order to progress economically. However, the judiciary must display greater patience towards the slower evolution of political parties, which are much more enmeshed within Pakistani society’s centuries-old, patronage-driven political economy.

Published in The Express Tribune, August 5^th, 2012.