THE federal government has formed a joint investigation team comprising officers of various investigation and intelligence agencies to “ascertain the facts behind a malicious social media campaign against Supreme Court judges”.
Three critical questions must be raised: can the JIT objectively ascertain the ‘facts’, given a highly divisive and toxic social media? Aren’t the facts leading to the unfortunate targeting of judges already known to the government, in view of some recent decisions, which are perceived as controversial, emanating from the court?
And would the JIT’s findings, followed by a set of coercive measures against the transgressors, really save the judges from future attacks while court decisions regarded as controversial as well as internal divisions continue?
To answer these questions, we must understand the role and nature of our public service, particularly the judiciary, and its impact on public behaviour.
Across democracies, the actions of public servants, including judges, come under public scrutiny. In fact, accountability is embedded in employment laws both at the institutional and public levels. At the institutional level, it sets the rules for evaluating the performance of public functionaries. The latter operates on agency principal, meaning that public servants are supposed to act as agents of the people who employ them and pay for their services. Therefore, they must act in the interest of their principal, ie, the people.
The judiciary forms a separate and specialised branch of public service in a democracy, but essentially, the judges’ job is no different from other public functionaries. They must also render justice to and for the people, and thereby keep the state and government within the confines of the law and Constitution.
Likewise, judges are also liable to public censure if they fail to deliver, professionally or ethically. No wonder, the law protecting judges has lost much of its significance in Western democracies. Only the obstruction of process or disobedience of judicial orders draws state sanctions.
But lax protection rarely causes the judges to be derided or defied by the people. Competent and upright judges are universally venerated, for they protect people, individually and collectively, against the excesses of their fellow citizens and state authorities. They face criticism only for ill conduct or ‘skewed’ judgements.
Recently, two US supreme court judges, Thomas Clarence and Samuel Alito, came under scathing criticism; the former for receiving expensive gifts, and the latter for accepting free trips. But the public backlash did not go in vain. It led to the codification of “rules and principles that guide the conduct of members of the court”. Similarly, Republican-appointed conservative judges are receiving flak for ‘rewriting’ settled laws on such socially and politically explosive issues as abortion, LGBT, guns, and voting rights.
Across democracies, the actions of public servants, including judges, come under public scrutiny.
We’ve also had our share of ethical and jurisprudential problems. Recently, we saw a Supreme Court judge bowing out after corruption charges were pressed against him. Another judge resigned in mysterious circumstances, triggering speculations about his personal dossier. However, contrary to Western traditions, our judges tend to be more sensitive about their image than the authority they wield. Many politicians have been punished under the law of contempt.
But this colonial model of ensuring deference for judges is becoming increasingly ineffectual, notwithstanding the plethora of penal laws and liberal use of the state machinery to gag voices of criticism. People are vocal because they are unhappy with the judges’ perceived ‘camps’ and ‘political’ proclivities. And social media has provided them with a vast outlet to express their disaffection in a more effective and organised manner.
Therefore, it would be imprudent of the authorities, and judges, to expect the people — millions of them — to change their behaviour towards courts that are widely perceived to have failed to protect fundamental rights. What is needed, instead, is a behavioural and normative change in the judiciary in view of the common folk being long denied their aspirations to security, liberty and honour as promised to them by the founding fathers and reiterated by every judge taking his or her oath.
Traditionally, politicians have been accused of passing legislation inconsistent with the Constitution. But a cursory look at the judicial annals shows the courts also engaged in a jurisprudential back-and-forth, playing dice with the law. Recent judgements appear to boost this observation. The court under the new CJP has engaged in a series of curative, corrective, and even ‘penitentiary’ adjudications. It upheld the Supreme Court (Practice and Procedure) Act and thereby curatively provided for an appeal against judgements passed in its original jurisdiction.
Taking a corrective view, it removed the lifelong ban imposed on politicians under Article 62(1)(f) of the Constitution. The court was also expected, in an act of atonement, to cleanse both its conscience and the stain of unjustly convicting and hanging a former prime minister, Zulfikar Ali Bhutto.
But then, the happy streak suddenly saw a reversal. A three-member bench headed by the chief justice upheld the ECP’s petition denying the PTI its party symbol, throwing it out of the electoral arena. The ECP decision may be technically ‘correct’, but it raises questions of propriety, construction (or interpretation of the law), and precedent.
Should the CJ have sat in a matter involving PTI and its founder who had previously brought action against the current CJ, imperilling his office, attempting to tarnish his image, and putting him and his family in great distress?
Moreover, if the construction provided more than one determination (as it apparently did in ECP’s case) shouldn’t the court have adopted the one that allowed the PTI — arguably the most popular political party — to participate in elections, ensuring a level playing field for all contenders?
And finally, why did the court have to deviate from the principle set in many a precedent, including the ‘Benazir Bhutto’ case? Ironically, history has answered such questions before, though in a varied and tragic form: ie, military takeovers, rigged elections, a polarised judiciary, ‘controlled’ democracy, the persecution of politicians, etc. But no lessons have been learnt.
A JIT or a crackdown on social media is no answer to judicial aberrance. Public behaviour towards the judiciary cannot be regulated, except through jurisprudential correctness and interpretational consistency. History records such coercion as witch-hunting to influence the outcome of the elections.
The writer is a lawyer and an academic.
Published in Dawn, January 25th, 2024
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