CONTEXT is everything. On Tuesday, a day before being sworn in as the country’s top judge, Justice Umar Ata Bandial identified the ‘scandalisation’ of judges as one of two main challenges before the judiciary, the other being the massive backlog of cases. He was speaking at the full court reference held in honour of the outgoing CJP where he dilated upon the road map for the Supreme Court’s functioning during his tenure.

In principle, the contention of now Chief Justice Bandial that judgements not judges should be criticised, is correct. There is, at the same time, a corresponding responsibility on members of the bench. Judges should speak through their judgements which must be anchored firmly in the law and uphold the democratic precepts enshrined in the Constitution.

Unfortunately, Pakistan’s history is replete with instances where the apex court has endorsed military interventions and other anti-people measures such as military courts that in every aspect violate fundamental rights. One can only hope that the ‘doctrine of necessity’ upon which most of these validations rested will never again be part of any verdict, for the long-term damage thus inflicted is plain to see for anyone with an understanding of history.

No doubt there have been many judges that have withstood external pressures, whether it was to refuse putting their names to a ‘judicial murder’ or taking an oath of allegiance to dictators — even at the cost of professional advancement. But, as members of the superior judiciary have themselves acknowledged, not all judges are created equal. Dissenting with the majority verdict of the special court that found Pervez Musharraf guilty of treason, Justice Nazar Akbar — now retired— held that the former army chief had taken advantage of weak and opportunistic elements in the judiciary to prolong his rule as president.

Sometimes judges who robustly defied attempts at curtailing judicial independence turned out to have feet of clay. Retired chief justice Iftikhar Chaudhry, for instance, succumbed to populist impulses and interfered in policy matters within the executive domain, handing down judgements that later proved disastrous for the country.

Divisions within the superior judiciary — as opposed to diversity of opinion that Chief Justice Bandial rightly said lends “richness to our understanding” — became evident most recently during former chief justice Saqib Nisar’s tenure and also contributed to taking the lustre off the bench. It is relevant to point out that Mr Nisar contributed in no small measure to negative perceptions with a brand of hyper judicial activism that bordered on being undignified.

Read: Judicial restraint was Saqib Nisar’s hallmark — then the dam broke

When judges become ‘personalities’, when they voice controversial opinions at public events rather than speaking through their verdicts, and when their rulings appear to favour the elite rather than the ‘ordinary citizen’, they lay themselves open to criticism. Chief Justice Bandial now has the opportunity to leave behind a legacy of enhanced respect for the judiciary in the court of public opinion.

Published in Dawn, February 3rd, 2022