Independence — to what end? …. Shahab Usto
“The Supreme Court has no control over the sword or the purse and its power and strength is solely based on public confidence” — Justice Athar Minallah
NOT too long ago, people in Pakistan, for the first time, got the opportunity to watch a live telecast from the Supreme Court where a full court heard petitions challenging the validity of the Supreme Court (Practice and Procedure) Act, 2023. Many viewers may not have understood the abstruse language used by judges and lawyers to articulate high-sounding legal concepts.
But they would have found the telecast both demystifying and educative — demystifying, for the diverse, intense, and yet freer discourse between the bench and the bar; and educative, for the scale of subjects referred to, and the forceful presentations made by the rival parties.
However, for informed viewers, ie those possessing some legal acumen and understanding of jurisprudence, the telecast would have seemed more like a re-enactment of an old battle that has been repeatedly waged in court to safeguard the independence of the judiciary — its territory, powers, and jurisdiction. Three questions would have convulsed their minds.
Independence, to what degree? This question would have puzzled viewers, given the current judiciary’s visibly dominant standing in relation to other organs of state.
True, the question of judicial independence within the overall constitutional dispensation remains pertinent in the context of the ‘influence’ widely perceived to have been exercised by the powerful military establishment over judicial ‘affairs’. But then, reclaiming lost ground from an overarching establishment is fundamentally different from protecting the judiciary’s trough against ‘intrusion’ by fellow organs of state.
The former denotes the imposition of an asymmetry that cannot be re-balanced or removed merely through judicial edicts; the latter signifies normal and continuing institutional adjustments dictated by the Constitution and ever-changing political variables.
It is only when the court protects the people that they will rally for its independence.
In fact, healthy competition among the organs of state is not only desirable but also intrinsic to the doctrine of ‘separation of power’ on many counts. One, the concept of separation of power contains a certain overlap of power among the organs of state, requiring self-regulation and caution to maintain institutional harmony.
Two, the Constitution as an ‘organic body’ itself requires constant interplay among state organs, both to fill a legal void and to meet the unforeseeable challenges thrown up by a complex modern polity. Finally, the respective strength of each organ, and hence the space between the organs remain vulnerable to political variables and practical imperatives, making it incumbent on institutional leaderships to avoid mutually attritional situations.
Independence, against what? To answer what saves the judiciary’s independence requires historical perspective. Historically, legal systems have evolved incrementally, or as part of a larger cataclysmic transformation.
The Western legal system developed hand in hand with corresponding ‘revolutions’ in the realms of politics, science, religion, industry, philosophy and jurisprudence. Judges and jurists have also played a seminal role in setting high standards of personal ethics and institutional morality. Moreover, involving the laity in the administration of justice through juries has further imbued courts with a spirit of democracy and openness.
On the contrary, our judiciary has come out of the womb of a retrogressive colonial order. No wonder, its genesis, and later ‘forced alliance’ with a colonially trained military elite, hampered its growth and freedom — spatially and jurisprudentially. Unpopular, and devoid of public support, it had to rely on internal devices, ie, interpretation and jurisprudence, to secure its ramparts, and that too, going largely against civilian institutions.
But such devices have proved inadequate. Even the entire body of jurisprudence — from ‘Tamizuddin’ to ‘Asma Jehangir’, ‘Nusrat Bhutto’, ‘Zafar Ali Shah’, ‘Tikka’, ‘SHCBA’ to a plethora of recent cases — has hardly been able to rescue the courts against the onslaught of military dictators — or their successors running a ‘hybrid’ dispensation.
If the current judiciary has achieved some semblance of autonomy over recent years, that owes less to its institutional devices, and more to the public support the judiciary received in the wake of the lawyers’ movement that not only toppled a military dictator but also led to the strengthening of its institutional sinews through wide-ranging constitutional reforms.
Hence, the requisites of an independent judiciary primarily include a robust constitutional underpinning together with continuing public confidence and the support enjoyed on the basis of its strength of character, role and performance.
Independence, to what end? Ironically, given the ever-bloating dockets, this question has found expression in the context of a transactional cost-and-benefit theory: whether the number of perks and privileges — including virtual ‘immunity’ from accountability — enjoyed by the post-Musharraf judiciary is commensurate with the number of benefits accrued to the common people and litigants, in terms of the protection of their fundamental rights.
True, the judiciary alone is not responsible for legal failures. But its relentless defence of its institutional pitch, if not the accompanying perks and privileges, has certainly led to a public perception that perhaps judges are more focused on guarding their institutional trough and personal entitlements, than the people’s rights and liberties.
Interestingly, during the live telecast, the judges also voiced concern regarding the imperative of restoring waning public trust in the judiciary in the context of their institutional legitimacy and efficacy.
So how to regain public confidence? Obviously, it requires revamping the legal system. But it also requires a fundamental shift in the object of securing judicial independence, making it contingent upon the emancipation of the common people from a host of state and societal sanctions that impinge on their liberties and impede the path to realising their true potential. For it is only when the court protects the people that they will rally for its independence.
Mercifully, three recent watershed judgements — the validation of the Supreme Court (Practice and Procedure) Act, 2023; outlawing of the trial of civilians by military courts; and subjecting the courts to public scrutiny under Article 19-A — have rekindled hopes of a truly ‘collegial’ judiciary being in the works under the new chief justice, Qazi Faez Isa, which would guard not only its flanks, but also citizens’ rights.
The writer is a lawyer and an academic.
shahabusto@hotmail.com
Courtesy Dawn, November 3rd, 2023