WE have been witnessing vocal debates about whether the Supreme Court’s suo motu action regarding the elections was dismissed by a majority of four judges to three or allowed by a majority of three judges to two.

With the issuance of the detailed reasons by Justice Afridi and Justice Minallah, the debate seems to have gained greater traction, and perhaps, is ripe for a riveting article dissecting it. But I am not going to do that. Firstly, because I am not sure how riveting any such article could ever be, and secondly, it is a red herring.

In fact, talking about which permutation or combination of bench majority is binding is the state equivalent of a defaulting Pakistan refusing to take advice from one of the top economic minds in the world due to reasons of faith. Everyone acknowledges that the economist is great, but unfortunately, because we are so engrossed by details irrelevant to his expertise, we fail to use his expertise at all. In simple words, we are missing the forest for the trees.

And we continue to do so even today. The actual issue isn’t which bench is to be followed. Irrespective of which one you end up backing, the result is the same — elections should be held in 90 days, or as close to it as possible. Hence, the debate is somewhat dated.

The real issue which needs our attention is the significance of what was said by the judges on either side of the divide. The great divide, so to speak, lies in how two sides of the same coin reflect alternative realities. One set of judges is focusing on doing justice, but without too much attention to palpable perceptions of partiality. The other side is focused on the latter, and feels that without addressing concerns of bias, any judgement would be of shaky credibility.

And they appear to be right. After all, few commentators can dispute that the bench headed by the chief justice made the correct decision on the merits of holding that elections ought to be held in 90 days, or as close to it as possible. But despite this, the decision created an uproar. It created a greater mess than was cleaned up, and actually weaponised calls for ‘rejecting’ it and subsequent decisions, which as mentioned here, were mostly sound. Why was that?

The answer lies in credibility. The Constitution assigns a key role to the judiciary. As a constitutional organ, the judiciary is to act as a neutral arbiter to disputes that occur between parties. They are the safety valve to difficult situations where institutions, parties, or individuals are at loggerheads. However, what happens if the arbiter himself appears to become a party to the dispute? Or in the words of Justice Minallah, what happens “when the court is perceived as politically partisan and the judges as ‘politicians in robes’”?

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There is a loss of credibility and acceptability. The legal principle that advocates justice not only being done but also being seen to be done has its roots in a dictum laid down by Lord Hewart in the case of ‘Rex vs Sussex Justices’. In this case, the deputy clerk of the bench before which the case was fixed was connected to the law firm engaged by one of the parties. At the hearing, the deputy clerk retired with the justices, presumably for deliberations, which then returned a verdict in favour of the party whose counsel was connected to the deputy clerk.

Although it was established in the appellate forum that the deputy clerk did not participate in any discussion, and therefore, did not influence the proceedings in any manner, Lord Hewart quashed the proceedings by holding that “justice should not only be done but should manifestly and undoubtedly be seen to be done”.

Now imagine if Lord Hewart had, instead, banged his table, asserting that no one could dictate to the court as to who would be present or presiding over the matter. Imagine if the bench had censured the aggrieved party, all the while expecting him to assume impartiality despite what it may look like.

And add to this a judicial context of historical intrigue: the legitimisation of military rule and a long-standing perception of being an accomplice to political engineering. What you would have gotten is a crisis of legitimacy and the urgent need for a principle like the one espoused by Lord Hewart. And thank God that he did.

Arguments against it usually take shelter behind the rhetoric of the autonomy of the judiciary and not letting anyone dictate terms to the institution. But that is as disingenuous now as it was back then when chief justice Anwarul Haq used it in relation to the murder trial and proceedings of Zulfikar Ali Bhutto.

In fact, nothing erodes the independence of a court more than the perceived loss of neutrality or what many think of as agenda-driven decision-making.

This is especially true at this troubled juncture in our history, where the wisdom and maturity of the Supreme Court is direly needed. Coincidentally, we are lucky enough to have some truly outstanding minds in the Supreme Court at this time — minds that are perhaps just as qualified and knowledgeable as the next.

When blessed with such a rich and diverse roster of justices, it is ill advised, to say the least, to forego the collective wisdom of the many in favour of the seemingly ‘like-minded’ understanding of a few.

In continuing to do so, we would be exposing the Supreme Court to further controversy, so much so that one would hardly be able to blame anyone for questioning as to why the public seemingly has a greater level of faith in the collective wisdom of the justices rather than the Master of Rolls himself. It would be a valid question. Tragic, but valid.

The writer is a lawyer based in Karachi.

basil.nabi@gmail.com

Twitter: @basilnabi

Published in Dawn, April 14th, 2023