Should The Judiciary Be Made A Party To Political Disputes?

Should The Judiciary Be Made A Party To Political Disputes?
When Prime Minister Imran Khan requested Chief Justice Asif Saeed Khosa to dispel the perception of double standards of law in the country, he was making a grave mistake. The changing perceptions and impressions about institutions and individuals is the job of media managers, not those who are dispensing justice to society.

This is especially inexcusable for a politician whose only notable political concern during the past five years has been focused on how to manage the media. And yet we see that he can’t seem to understand the difference between the jobs of a judge of superior court, whose primary task is to dispense justice, no matter how it is perceived by the society at large; and that of media managers, whose job is to influence and shape the perceptions of ordinary people in the society.

Media managers, and particularly those who represent a populist political party, don’t deal in realities or truth. Rather they deal in information (which could be disinformation) and assertions. Judges, on the other, deal in evidence and facts and perform the foundational task of dispensing justice. And through this act they protect the society from slipping into chaos.

Let me here narrate a meeting I had with an old gem of Pakistan’s superior judiciary, Justice(retd) Saad Saood Jan. He was an extremely well read and highly sophisticated judge of the Supreme Court in 1990s. During Benazir Bhutto’s second tenure, she wanted to appoint Justice Saad Saood Jan as Chief Justice primarily because of his seniority. But JUI and its affiliate organizations posted banners in Islamabad that they would not allow the government to appoint Justice Saad Saood Jan as Chief Justice, claiming that he was from a religious minority and could not become Chief Justice of an Islamic state like Pakistan. In those days I used to cover the Supreme Court for local newspapers. The day JUI posted banners in Islamabad, I went straight to Saad Saood Jan’s chamber and he was gracious enough to invite me inside. I inquired about the posters in the city and he replied with a cryptic smile, “I cannot make a statement on this, it will show my bias against or in favor of any particular religious community. How can I be expected to dispense justice in any case related to that community if I have already shown my bias to the public?”

In a conversation with me that lasted some five to ten minutes, Justice Saad Saood Jan clearly stated that it was not the job of a judge to influence and shape the perceptions and impressions generated by any event or judgment coming out of the superior courts.

Now look at what our Prime Minister expects and requests the judges of the Supreme Court to do. He wants them to clear away a perception created primarily by the endless prattling of political pygmies and the brigade of spokespersons roaming around Islamabad. These elements keep up their noise in praise of or against the judiciary strictly according to the situation that their political masters are facing at the moment.

So perhaps the Prime Minister, before advising the Chief Justice to clear the perceptions, ought to rein in his own media managers. Perhaps he ought to ask them to stop trifling with the judiciary. And for this to happen, the Prime Minister will have stop behaving like merely the head of a political party with parochial interests. He would have to start behaving like he is presiding over a state structure and that it is his prime responsibility to keep this state machinery functioning.

“I respect the intelligent Chief Justice Khosa and Justice Gulzar. I want to request them to set our country free by delivering justice,” the premier said while addressing a ceremony in Havelian on Monday. “This has become a perception in Pakistan that there is one law for the powerful and another for the weak. The history of our country tells us that our legal system can’t touch the powerful.”

During the past two to three years the judiciary has been unnecessarily and vengefully dragged into political conflicts, They have been made the target of negative political campaigns and center of controversies related to power struggles in Islamabad. Now our judiciary doesn’t have a golden history to celebrate, but still it would be quite fair to say that the judiciary in any society plays a foundational role in keeping society away from chaos. This is doubly true in case of Pakistan where political institutions are dysfunctional and were kept in abeyance for more than 30 years of the country’s history. Here the only guarantee of protection to the citizens against the excessively repressive executive comes from the judiciary. The justice dispensed by the judiciary is a crucial factor that keeps the social and political groups from taking up arms against the state.

The present state of the judiciary is an outcome of the tendency in the political elite and former top judges to settle every political issue or dispute in the superior courts. If there is conflict, go the court. If there is a dharna, go to the court. In case of a palace intrigue, go to the court. Go to court against the ambassador go to the court. Even if somebody has already gone to court against you, simply go to court against them. In short, it is increasingly becoming a frivolous exercise and misuse of the judicial system. A former Chief Justice even wanted to settle the market price of sugar through a court order. Most damaging were the cases where questions of political nature were settled in court—to the satisfaction of one party and to the annoyance of another. This made superior courts part of a tug of war between political players.

Political conflicts are a tricky business and resolving them demands political acumen and flexibility. The rigidity of written and codified law makes it a particularly unsuitable vehicle for resolution of political disputes.

All the opponents of Zulfikar Ali Bhutto wanted the judiciary to remove him from the political scene in the 1970s, which the judiciary did. Now we hold the judiciary response for the murder of ZAB. More recently, again, our executive branch and Nawaz Sharif's opponents showed too much haste in wanting the judiciary to remove former PM Nawaz Sharif from the political scene. Ten years from now, will we be mourning the punishment of another prime minister?

The mad rush of political leaders towards superior courts for the settlement of their political disputes has put too much pressure on the superior judiciary. Essentially, the judiciary in our constitutional setup is designed to be the enforcer of fundamental rights and interpreter of the Constitution. Both the roles have been pushed into the background and now every one in the political arena wants the judiciary to be their partner against opponents.

PM Imran Khan will have to learn these lessons, unless he wishes to unravel all traces of constitutionalism and justice in the country.

Umer Farooq is an Islamabad-based freelance journalist. He writes on security, foreign policy and domestic political issues.