Thomas N’Kono and the significance of judicial activism

SC, like a goalkeeper, is the last line of defence. Judicial activism is a sign that this defence is failing.

Judicial activism is not a sign that the rule of law has finally arrived in Pakistan. Instead, judicial activism is a sign that we have failed to establish the rule of law.

Let me begin by saying that there is nothing inherently wrong with judicial activism. I have no problem with the Supreme Court roasting scoundrels. Yes, I do disagree with some of the decisions the Court has taken but this column isn’t about the pros and cons of judicial activism. It is about the conclusions one should draw regarding a legal system dependent on judicial activism.

But let’s move away from high theory for a moment and go back to the 1990 football World Cup and the Indomitable Lions of Cameroon. I remember that team for two reasons. First, the goal-striking ability of Roger Milla, the Cameroonian forward, who had this endearing habit of celebrating his goals with a full-on hip-swinging, bum-wiggling dance performed at the corner of the field. Second, the goal-keeping of Thomas N’Kono, still regarded by many as the greatest goal-keeper produced by Africa.

Back in 1990, African football was regarded a joke by the cognoscenti. Cameroon’s performance changed all that. When Cameroon reached the quarter-finals of the 1990 World Cup, they were the first African team to make it that far. In the quarter-final, Milla entered the game to find Cameroon trailing 1-0 to England and promptly led his team to a 2-1 lead. The problem was that between Milla and N’Kono, there was no one else of equivalent quality. For most of the game, that was enough: wave after wave of England attacks only resulted in N’Kono turning back shot after shot. Ultimately, though, England were too good, with Gary Lineker converting a penalty in the 105th minute for a 3-2 win. And so, what I remember of that match, is N’Kono with his head on the ground, his titanic effort having gone to waste.

Simply put, here’s the point: notwithstanding the presence of N’Kono, Cameroon didn’t have much of a defence. A good defence requires more than a good goalkeeper: it requires a team effort in which everybody collaborates, and in which the back four make damn sure that the opposition forwards get as few chances to score as possible. A goalkeeper who routinely produces the miraculous to prevent the opposition from scoring is not a sign that the defence is working: it is a sign that the defence is failing.

The same principle applies to matters of state. You cannot point to an active judiciary as a sign that the rule of law is in good shape. Like the goalkeeper in a football, the judiciary is simply the last line of defence. The fact that our Supreme Court has taken judicial activism to new heights is not a sign that respect for, and enforcement of, the law has become more widespread. Instead, it simply shows that the remaining organs of the state charged with ensuring the rule of law are failing to do their job. Judicial activism doesn’t signal a healthy body politic; it is a sign that the body politic is resorting to desperate measures to keep itself alive.

Let me make a further point as well: the most enticing and presumably rewarding part of a judge’s job is the fact that you can simply reach out and make someone’s life better by giving them justice. I, therefore, completely understand the imperative that drives judges to try and make things ‘just’ on a case-by-case basis. The point though is that judges are part of a ‘justice system’, they are not ‘the system’ in themselves. What is surprising, and no less disconcerting, is the complete failure of the relevant bodies to grapple with this fact.

The institution most directly charged with examining and reforming the justice system is the National Judicial Policy Making Committee (NJPMC). In 2009, the NJPMC came up with a National Judicial Policy (which has been revised and updated from time to time). The judicial policy, unfortunately, sticks generally to the most basic level of exhortation as if pushing the lower judiciary into moving faster can solve all problems. The recommendations on “expeditious disposal of cases” thus provide that bail applications shall be decided by magistrates within seven days by high courts. Similarly, the policy provides that writ petitions dealing with student admissions should be decided within 60 days and that stay matters should be adjudicated within 15 days of grant of an interim injunction.

I have two points to make here. The first is that the justice system needs to be analysed to understand the basis for disputes within our society and whether those disputes are, in effect, avoidable. For example, rent disputes account for a significant proportion of civil disputes in Sindh because the rent law there is asinine. Punjab, however, has changed its rent laws and my understanding is that the number of rent cases has also declined. If that is correct, the reforms in Punjab should be extended to Sindh. Similarly, other statutes need to be examined to determine whether they are, in effect, encouraging litigation.

The second point is that even within the parameters of the legal system as it exists, the justice system — as a whole — needs to be made considerably more efficient so as to avoid wastage of time. To take the simplest of examples, a tremendous amount of time gets wasted in court because lawyers are busy elsewhere. The process of dealing with adjournments can safely be outsourced to the parties themselves and, where they disagree, to subordinate officials. It is not necessary for high court judges to deal with all adjournment requests during court timings.

This is not the occasion to examine judicial reform proposals in detail. All I want to say is that we need a system where the Supreme Court isn’t constantly required to save the day. This requires reforms in every branch, and at every level, of government. And within the judicial branch itself, the Supreme Court needs to worry more about systemic reform than the satisfying, but essentially limited, task of placing heads on a pike.

Published in The Express Tribune, October 3^rd, 2012.