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In the majority decision rendered by Justice Nasir-ul-Mulk in the prime minister’s contempt of court case, a reference was made to a quotation by the American Justice Robert H. Jackson: “We are not final because we are infallible, but we are infallible [only] because we are final.” (The word ‘only’ was notably omitted in the reproduction of this quotation by the Supreme Court in its verdict).
In Pakistan, this principle no longer applies. Whether for better or worse, the Supreme Court of Pakistan’s decisions ceased to be ‘final’ when an appeal was made to the court of public opinion. Today, a number of television talk-shows, newspaper editorials and armchair analysts dissect and dismember Supreme Court decisions as soon as they are announced. A detailed verdict is ‘breaking news.’ The very fact that this obscure little blog piece appears on the website of an English daily is testament to the fact that the Pakistani public feels entitled to question and comment on judicial determinations made by the apex court of the land.
This point is not lost on the Supreme Court. Day-to-day proceedings are reported as front-page news. Prominent judgments are published immediately on the Supreme Court’s website. When Justice Asif Saeed Khosa placed reliance on his own poetry and that of Khalil Jibran’s in his concurring opinion in the case, he was referring his argument to the court of public opinion. Ironically, it is the court of public opinion to which the prime minister has also appealed (and will no doubt do so again, after his soon-to-be-filed Supreme Court Appeal is determined).
Justice Khosa’s concurring opinion is also notable in this context for another reason. In the latter half of his opinion, he argues that to defy a judicial order is to defy the will of the People, thereby conflating the Supreme Court’s will with that of the People. Though this is a utopian ideal no doubt, it has little basis in reality. In the first place, the Supreme Court itself should not have a will – in theory it should be nothing more than a collection of independently minded individuals trained in methods of legal reasoning. Anything more than that is beyond the ambit of our system of government.
Another reason why this argument is incorrect is because Judges are entirely unaccountable to the public insofar as judicial performance is concerned. Even if one were to come to the conclusion that the public supports the actions of the Supreme Court (a dubious theory – it is not as if judicial decisions are subject to referendum) what would be the outcome if the People were to then, in the future, disagree? It is not as if the Supreme Court could go back and reverse its earlier decision. Nor would it be possible, under the framework of the Constitution, for the People to then express their lack of confidence by appointing a new set of Judges – though the 2007-2008 movement for the restoration of the judiciary appears to be an example to the contrary, it is not. This is so for the simple reason that the example cited has reference to an extreme situation. A People should not have to resort to extra-legal means to express how they wish to be represented.
It also begs recognition that Supreme Court Judges are appointed from a fairly homogenous group, as opposed to being elected by the People. As such, they do not represent any significant cross-section of society. At the outset the Supreme Court cannot claim to represent any more fifty per cent of the population since they are uniformly men. Factor in the reality that Supreme Court Judges are in their late fifties to early sixties, urban-dwellers, and drawn from professional litigators, and you get a very narrow demographic indeed. Thus, it is clear that we cannot expect these individuals to have any grasp of what is high on the list of priorities insofar as (for example) a young woman from Balochistan is concerned.
It is also important to remember that public opinion is fickle. When the erstwhile dictator, General Pervez Musharraf took power, he did so largely with the consent of the People. A decade or so later, he was unceremoniously shown to the door by the very same People who had earlier welcomed him in. Imran Khan, who for many years languished on the political side-lines, is today considered a champion by certain segments (seemingly enough so to garner significantly more electoral success than he has had in the past). Therefore, it is worth noting that when the Supreme Court appeals to the People, it builds a castle on shifting sands. If in the coming year, the PPP secures sufficient seats to form another government (which is a very real possibility), would that not seriously undermine the dignity and authority of the Supreme Court?
The writer is a lawyer practicing in Karachi.
The views expressed by this blogger and in the following reader comments do not necessarily reflect the views and policies of the Dawn Media Group.
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Comments (54) Closed
May 22, 2012 02:12pm
Great argument and reasoning!
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May 22, 2012 02:44pm
Sir, I say that justice is truth in action.
There may be times when we are powerless to prevent injustice, but there must never be a time when we fail to protest.
Blessed are they who maintain justice, who constantly do what is right.
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May 22, 2012 02:54pm
Very much delicate. If the court by judicial overreach or by the compulsion of genuine requirement under the law or on the basis of natural justice, declares certain acts and things done by the government are illegal or could not withstand the scrutiny , there rises the important question that from which date the judgement is enforceable? Take for example, if president could not promulgate ordinance pardoning some body on his will or by national reconciliation, it must be from the date of inception of the constitution or from the date of becoming a sovereign country. Could not be selective and intermediate. Am I correct?
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May 22, 2012 03:20pm
I always wonder on few fundamental questions of political philosophy. Why people vote and what is underlying theme of seeking legitimacy by election? Only Because they are wiser enough to elect wisest one? Is majority opinion always correct? If it is true why not abolish Parliament and ask 16 corer people to electronically vote on bills and issues. Is not it more fair? Then What if the majority of Pakistanies decide to elect Talibans as their rulers? I am sure minority will do what isreal and America did with Hamas and doing with elected Iranian regime. Therefore, I believe the court of people is not based on reason, justice and fairness. In brief, even if, they decide to reelect PPP and Zardari led regime, it would not sanctify them.
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May 22, 2012 03:58pm
Well the piece doesn't appear from the pen of a lawyer but of a commoner who will love to follow the policy of present rulers who have spared no effort in ridiculing the apex court decisions. The SC is mandated by the constitution of the country and all the SC judges' features pointed out by the author have not been laid out in the constitution. This is the first time, a so-called democratic regime has violated constitution so blatantly and indulged in gigantic corruption to the utter detriment of masses by making the apex court powerless and ineffective.
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May 22, 2012 06:29pm
What is your point ? You will have to pardon me but if you are criticising the court your arguments are weak and baseless. If you are on the side of the court, the same thing applies. Your theory ( if there is one) is nothing but a hodgepodge amalgam of ambivalent hot air.
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May 22, 2012 08:21pm
The author has raised very valid points
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May 22, 2012 08:43pm
The vote of the illiterate and subjugated person can not, at a national level, be equal to that of an intellectual, educated and sophisticated person. Similarly, the vote of one related to the corridors of cronyism and grafts, can not, in the true sense, be the same as that of the man from main street. This is a major flaw of democracy and nobody dare speak against it. We should suffer more, till the point is driven home.
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May 22, 2012 09:13pm
Well many people had learned from likes of Aitezaz and Fawad Chowdry. Good luck.
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May 22, 2012 09:21pm
The judges have to learn that they are not executive officers ,the day to day business of the government has to be run by the elected representative What has been achieved by judicial interfarance.?? Virtually nothing ,yah but ppp has been hounded ,of course
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May 22, 2012 11:59pm
I think you should read David Brooks on Democracy - link attached- http://www.nytimes.com/2012/05/18/opinion/the-age...
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May 23, 2012 12:00am
The will of the people is the highest court and has the highest sanctity.If some people have unclear concepts about democracy and its workings, they should try to expand their knowledge base and sort out their inner conflicts rather than try to confuse others as well. They should not try to sound like great political thinkers or have such pretenses. After all nearly all of the world today agrees with democratic norms and practices.
There are some political have nots in our country who were either never elected or are unlikely to get a majority who keep coming up with ideas.The thought that a political party they dislike is going to be elected or reelected gets their minds dizzy.
If taliban are elected then they would be the legitimate rulers. However if they bring the country into conflict with the rest of the world then the electorate would suffer the consequences.
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May 23, 2012 12:10am
some would say that the judges have violated the mandate of the people so blatantly and repeatedly.
One may say that the supreme court is the conscience of the nation, but the parliament ,an elected body, is even more so. Judges are nominees , appointees and employees within the governmental set up.
The population may not need to know the judges , but knows its elected representatives.
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May 23, 2012 12:32am
Democracy......... In Pakistan.......... Are you kidding me? Are you really innocent to know who cast vote and why they cast vote? Have you ever casted a vote? When not more than 30% of population casts vote and that too on the bases of the CASTS, Religion mainly on instructions of the choudhry or nawab or vadaira or when your vote is casted without you being in polling station or instructed to cast vote to a certain party or a person by the urban or rural feudal lords. You must be really innocent in saying that public true representation is in assembly for example Mr Baloor securing only 7000 votes nag enjoying assembly or in Karachi where votes are in over hundred thousands but voters have no option or their option is irrelevant or do you really think that your knowledge and command over language and your metal reasoning ability is just same as the peon who makes tea for you, then professionally your peon should have commented on this very article or should have written another such masterpiece or he should be replacing you in your office. As human, we all are same, should enjoy same respect and dignity, but there is a difference between a person who knows and a person who don't know, at least my religion says so. Hazrat Ali (AS) once said that ' a society can withstand any atrocity but injustice'.
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May 23, 2012 01:59am
"The best argument against democracy is a five-minute
conversation with the average voter."
+
-- Sir Winston Churchill
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May 23, 2012 02:06am
" The law is what the judge says it is."
Oliver Wendell Holmes (Chief Justice of the US Supreme Court)
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May 23, 2012 02:17am
Excellent points are made by the author. It seems that many people have lost the ability reason out consquences far into the future, and emotional reactions are making the situation in Pakistan more and more intolerable. Unelected judges should not meddle in issues best left to the legislatures.
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May 23, 2012 03:39am
Very good observation. This article is about how judiciary should remain neutral
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May 23, 2012 04:14am
"We the People are the rightful masters of both congress and the courts -- not to overthrow the Constitution, but to overthrow the men who pervert the Constitution."
-- Abraham Lincoln
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May 23, 2012 05:03am
And even after seeing so much corruption there are writers to protect the Government from any criticism or court orders. Shame
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May 23, 2012 09:01am
One should examine wheather the PM, the President, the Minister for Law and the Speaker should be kept out of the purview of contempt of court. As an outsider I have not seen anything that the PM has done which can remotely be called ridiculing the court. As a matter of fact, under very high provocation, he went out of the way to be modest in front of the 'their highnesses'. Just as the 'highnesses' have a job of interpreting the constitution and the law, the PM has a very difficult job of running the country under extremely difficult and hostile situations. Once elected the courts should not have the power to unseat the PM under the pretext of something as innocuos as 'you did not write a letter I asked you to write and I do not care if you have your reasons for it.' How does a democratically elected PM perform his job if he is constantly badgered by the military and the judiciary.
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May 23, 2012 05:11am
One of the best legal analysis in any paper. Kudos to the writer, only a qualified person can write such an Op Ed. I fully agree with it. Thanks for the nice scientific analysis.
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May 23, 2012 05:33am
Enough of this Abraham Lincoln nonsense. When Abraham Lincoln was elected, the majority of Americans did not even have the right of vote. Only white men had the right of vote, on top of that several US states had property ownership requirement to have the right of vote. Of the rich white males, by the rich white males for the rich white males.
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May 23, 2012 05:44am
Actually some one spoke against it 80 years ago;
Jamhooriat woh tarz-e-hookamat hai keh jis main, Logoon ko gina karte hain toola naheen karte.
In a democracy you count heads not brains. Although I still support democracy, an empty head has no one to blame but itself.
Democracy is in fact a transitionary period in the history of most nations. The virus of vested interest soon learns to defeat it's defenses and eats it up from within leaving behind a hollow shell. Most of the so called democratic countries are in fact post-democratic countries.
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May 23, 2012 06:13am
The judgement of the court shows that decisions are based not on sound reasoning but deep-rooted beliefs and views,namely, political elite is basically corrupt and need to be controlled and made accountable. No matter what does Aitezaz says, the decision was made from the start to convict the PM.
As regards the lamentations of justice Khosa clothed in the poetry of Khalil Jibran, one need to consider the following lines
Pity the nation where judges of the apex court give dictators the right to amend the constitution.
Pity the nation where brother judges pass judgements upon their Chief justice barring him from office.
Pity the nation where court cases take an eternity.
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May 23, 2012 06:37am
Corruption is a huge problem of our society. What is a bigger problem is drawing conclusions on the basis of bias. Some people with more bias and less knowledge equate PPP to corruption and equate corruption to PPP. How justified that opinion is, need I say much? But Pakistanis as a nation need to wake up and address their problems instead of exercising their biases in the name of national issues. I am not sure if what I am saying is contempt of court but judges of present court exercised their bias in the name of a national issue.
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May 23, 2012 08:01am
The article is a poignant reflection on the role of the judicial arm in Pakistan. Undoubtedly, the Supreme Court has taken up very important cases since its restoration and has given landmark decisions, but at the same time it has also gone way beyond its jurisdiction in the name of the self-defined mandate given by the people after its restoration. Undoubtedly, the mismanagement and corruption of the politicians, the bureaucrats, police, revenue, customs, and other departments of the government have been responsible for the current state of affairs in the country, but we cannot exclude judiciary and lawyers community in promoting such corruption in the country.
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May 23, 2012 08:09am
What about the corruption of the Judiciary itself?
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May 23, 2012 08:30am
The boldness and the frankness of the current apex judiciary is appreciative, but it has miserably failed in addressing the rampant corruption of the staff in the apex courts and the district judicial officers.
The corruption of the judicial officers is highlighted in the news media, but still the Apex Court and the persons leading the Apex Court blatantly overlook the corruption within the judiciary. The Judiciary should start from weeding out corruption within the judiciary itself.
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May 23, 2012 08:32am
The Chief Justice of Pakistan and of the High Court would never miss any opportunity to take a suomoto notice of any incident that involves the corruption and the misuse of power by the executive branch of the country, but would give a clean check to its own corrupt judicial officers for some unknown reasons.
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May 23, 2012 08:34am
It is important for the apex judiciary to understand that they are themselves part of the same system as a common citizen of Pakistan that includes honest and corrupt officers and the political elite as well. They have been blessed with the power and should exercise in a just manner with the fear of Allah the Almighty. The movement for the restoration of the judiciary has restored judiciary, but has not cleansed the judiciary itself of the corrupt elements. The Judiciary should first set its own house in order and then focus on the corruption in the other departments.
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May 23, 2012 08:46am
The boldness and the frankness of the current apex judiciary is appreciative, but it has miserably failed in addressing the rampant corruption of the staff in the apex courts and the district judicial officers.
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May 23, 2012 10:18am
In Pakistan some say " If you want to win a case Hire a Judje not a lawyer"
All systems in the country is riddled with corruption without a doubt. So Sad.
Now we see a power struggle between corrupt institues.
A Good article, well written.
Please get an URDU translation and provide it to the man on the street.
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May 23, 2012 11:48am
In Pakistan some say " If you want to win a case Hire a Judje not a lawyer"
All systems in the country is riddled with corruption without a doubt. So Sad.
Now we see a power struggle between corrupt institues.
A Good article, well written.
Please get an URDU translation and provide it to the man on the street.
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May 23, 2012 11:57am
Interesting analysis, however, I would like to shed a light from other side. Very few among us are devoid from the sense of Justice and fairness, and such are those who can never be part of any strong civilized society. Prime purpose of law is to provide Justice, now, some may argue, that the Judge should follow the book, and rules and arrive at what ever decision he may, other, will always say that the decision has to be based on fairness, justice and the end result must be reflective of very important principal of JUSTICE.
Yes, there is a decision, which apex court has taken, and there are many decision they are taken, all confirming that the rule of law should prevail, and where as they do not require any endorsement from Public as such, they were endorsed by General Public. It is time, where lawyers, leaving their political affiliation, must stand behind the Court, to ensure that Justice is achieved.
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May 23, 2012 02:28pm
LOL.. democracy is nothing but a system to corrupt the corrupted and maximise the use of power on politics. If you have interest in something you will do something about it as top priority. Rest are done as to be done for later which most of the time never comes up until the time of the next elections.
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May 23, 2012 02:29pm
Democracy is a system designed to fool the fools further into the well.
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May 23, 2012 05:36pm
The PPP may win the coming general elections and form the government again - always a possibility for a political party, but what it fails to understand that by defying the highest court it is only defying the very essence of the society. What will the PPP will be ruling in the days to come - chaos. The author may be building a case against the judiciary in the very narrow and procedural context, but he completely fails to understand or perhaps is overlooking the responsibility of an elected government in maintaining democratic order and discipline.
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May 23, 2012 06:49pm
Pakistani courts do not sentence any terrorist but they do anyone who works against terrorism. Thank you for sentencing Dr. Afridi and shame
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May 23, 2012 06:59pm
If former President Musharraf is to be tried for violating the constitution, then the Chief Justice of Pakistan should face the same charges for allowing it!!!
Pakistan courts, judges and most lawyers stand in demonstrations on their high horses telling everyone they are defending the constitution in supporting the return of the CJP but forget the very people they themselves serve in their courts.
The courts function is to decide cases WITHIN the law of Pakistan and not the law of 'who can give me the most money'...
The Judiciary should try the current rulers instead and clear the majority of corrupt lawyers and show the people of Pakistan the rule of law exists instead of preaching and telling the people they are doing some good.
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May 23, 2012 07:10pm
This very relevant to our milieu.
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May 23, 2012 07:46pm
Its not party itself but individuals who hi jack the parties and tarnish the name and obliterate the constitution of the country and flaying the supreme court descions.
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May 23, 2012 08:28pm
I think it is pertinent to elaborate on corruption in the judiciary. For instance, there was one Additional Registrar of Peshawar High Court against whom inquiry was initiated, but the Member Inspection Team exonerated him and declared a person (who was a key witness) in an inquiry a dead.
The person was interview by the "Dawn News", and said it in an open media that he was alive but has never been summoned for a statement. His recorded interview and the clips of the News Paper were handed over to the Investigating Officer, but still the then investigating officer did not record the statement of a witness and exonerated his friend Additional Registrar of PHC D.I.Khan Bench from any misdoings and corruption. The veracity of this incident can be verified with full supportive documents. The apex court did not terminate the said judicial officer, but rather promoted him.
The same apex court in other case in Peshawar High Court directed the COAS to court martial the army officers invoved in the Missing Persons Case. Undoubtedly, the Missing person case is very important and the directions of the apex court are highly appreciative, but while directing the COAS, the said judge should have also looked into the corruption and misdoings of his own judicial officer. The dilemma of Pakistan is not laws, institutions, rules or regulations, but hypocrisy, double standards, and selective applications of the law to attract media attention.
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May 24, 2012 03:20am
I was born and raised in Canada. My roots to Pakistan run deep, since 98% of my family lives in Pakistan. I was giving the opportunity to be Licensed to practice law by Law Society of Upper Canada. In 2009 a complaint was lodged against me by a client. This resulted in my suspension and a fine. The sanctions were to be fulfilled in order to get my license back to practice again.
The Law Society of Upper Canada asked me to provide document A from the Embassy to fulfill the demand order. I tried very hard to gain document A from Pakistan Embassy. After a month, the Embassy gained clearance from Islamabad to issue me the document A, which I provided to Law Society of Upper Canada to fulfill the Demand Order. Before document A, Pakistan Embassy sent a letter acknowledging that I had interacted with them for a matter. But it was rejected by the Law Society of Upper Canada because the investigator stated " it is a letter from a corrupt government" and dismissed it and demanded document A which was impossible to get. After Document A was provided to Law Society of Upper Canada for further verification, no reply was provided to me. My business has been eliminated by Law Society to project its authority. I have lost everything, I mean everything.
The double game Law Society committed is futile; when President Prevez took over, Law Society displayed solidarity, diversity and upholding the law, but they showed a dark side by refusing me the license, because of my origin and ethic background. As of now, they do not return my emails, my requests are always diverted. The investigator is fired, and two counsels who were present at the hearing were also let go by Law Society of Upper Canada.
My question is simple : Where is solidarity of these institutions when most is required?
I had brought up the issue with Pakistan Embassy as well, because I feel that even though I have lost everything, I believe the Integrity of Pakistan requires attention. I am willing to go even further, but the Law Society of Upper Canada will not back down that easily, What do you think I should do? I want to know your opinions please.
Thank you.
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May 24, 2012 08:21am
...........it is not for the sanctification of one man upon which the democratic edifice is built! by questioning the ratioinality of popular vote, you have placed yourself in the medieval times, regardless of your political philosophy. who said that being wise was the criterion of voting? regardless of the majority opinion being correct, pl tell other method which is better than this to choose and form govts! by giving suggestion of electronic voting, you have moved ahead of the technical and social progress of the scoeity, nothwithstanding your knowledge of direct democracy, which i seriously doubt - given the shallow character of your questions! by casting doubt on popular reason, you have shown the place you come from, which is not bothered about the popular sanction behind the public rule!
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May 24, 2012 08:23am
............a beautiful definition of popular sovereignty!
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May 24, 2012 08:33am
.........by differetiating between the vote of an educated and uneducated person, you have thrown back yourself by 100s of years since man got the right of the vote! such a belief in one's wisdom and such a contempt against uneducated man, i am hearing for the first time! by speaking against democracy, you would have really contributed to the discussion and done a great service to poltical science if you had also advised a system of governance which is better than democracy!
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May 27, 2012 10:45pm
Abbas is absolutely correct. A common man in the street is really unaware of the significance of their votes, or what issues are at stake because majority of Pakistanis are undecuated and illiterate. They cast their votes as per directions of their masters, and sometimes they are gratified by sums of money paid to them to do what their masters want them to do. It is a very vicious & corrupt process of voting in Pakistan.Democracy does and cannot work among illiterates.
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May 27, 2012 10:54pm
Osman there is a BIG DIFFERENCE between voting by an illiterate/uneducated person and those who have basic education. The former do not have any political savvy or understanding except demand and satisfaction for 'roti, kapra & makhan" The world does not work only on these three needs. There are many other geo-political and national factors at play in running the country. Let's not get emotional. It is not the issue of educated versus uneducated discrimination. What has Pakistan done since 1947 to modernize the life of a peasant, farmer, laborer and the average man? What level of education has it provided to its population, what history has been taught to its people, what sense of pride and nationalism has it provided in the heart of its people. Be realistic. Look around you & travel across beautiful Pakistan to see for yourself how simple are my people. Forget all about US democracy or writings by western authors. Their concepts work in an advanced society not in Pakistan.
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May 27, 2012 11:04pm
If tomorrow all the crooks & criminals in Pakistan joined together and formed a political party and suddenly came into power, or all the die-hard fundamental mullahs jopined together and formed a political party, such a parliament would be totally unacceptable to vast majority of average Pakistanis and the rest of the world. Look at how isolated and fragmented Pakistan is today abroad and at home respectively. There is to date not a single authoritative voice that speaks for 198 million Pakistanis after 62 years of independence. Each party is out to seek vengance and out-do each other in playing one Pakistani against the other. Furthermore all then after creating chaos and misery for Pakistan as a nation run to either USA or UK, or Saudi arabia or United Arab Emirates for "political asylum", and Pakistan has to start all over again. What sad times for my poor Pakistan where the rich get richer & the poorer die everyday for one politician or another.
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May 27, 2012 11:08pm
Unfortunately corruption is ingrained in almost every Pakistani, not the writers or the government. Let us not forget for a micr-second that Allah watches us constantly. We are all sinners and to be blamed for the sad state of affairs that we see in Pakistan today. You Muhammad Iqbal & I are equally to blame for fostering and allowing corruption to prevail. Shame on all of us.
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May 27, 2012 11:15pm
It is obvious that the Courts & system of Law & Order has failed terribly in Pakistan. Everyman unfortunately has become a walking, talking authority on law in Pakistan. All interpretation of section of law are twisted to suit whoever that is in power. Absolute power corrupts absolutely, and most politicians are totally corrupt. The lawyers are in it for their own selfish interests and do not want to annoy the highest payers; some are in line waiting for a cabinet or ministeral posts as favor.
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May 28, 2012 01:27pm
What is the definition of democracy in Pakistan?
Collect the garbage from all around and put it in the center and call it Islamabad
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May 28, 2012 03:22pm
If you were born & raised in Canada, then you are a Canadian citizen and as such you must seek resolution from the Government of Canada, and the Law Society of Canada. Definitely not from Pakistan where there are no "established" legal system that we see in the Western Countries, and no record-keeping. Most countries including Canada do not recognize the law degrees earned in Pakistan or India. In order to practice in the Western Countries you have to pass the credential requirements, and write a further exam and waited to be accepted to the bar. The same is applicable for aspiring doctors or chartered accountants. What has the integrity of Pakistan got to do here? As individual it is your responsibility given the fact that you are born & raised in Canada to question the Canadian Government, and seek remedy with them. Further as a natural born Canadian citizen, it does not make any sense why you would go all the way to Pakistan to obtain your legal degree when you could have obtained it in Canada. This is dubious indeed. Something is not correct in your comments.
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