A judge’s note
THE Supreme Court of Pakistan is currently independent. That does not mean it will always be wise or that you have to agree with all their judgments. What it does mean is that its decisions are not being dictated somewhere else. This is significant progress for us as a nation.
Do we jeopardise this independence by criticising judgments of the court? It is a fundamental right of all citizens to comment on court judgments. Any criticism must be in temperate language. Rather than undermining independence, this encourages healthy debate and strengthens our institutions.
Ultimately, judges are human and we should be free to disagree with them. Court judgments are only sacred in so far as their implementation is concerned. Even if we respectfully disagree, we have no choice but to implement.
A seven-member bench of the Supreme Court has issued its detailed order in the prime minister’s contempt case. One of the honourable judges has deemed it fit to add a note to the detailed judgment. The note is addressed to all of us. It is eloquent and comes from the heart.
In essence, the note laments where we stand as a nation: morally bankrupt and bereft of values. It suggests that as citizens we bear collectively responsibility for our sorry state of affairs. Quoting from John Donne’s poem titled No Man is an Island we are warned that the church bells may toll for all of us unless we mend our ways.
Whereas Justice Nasr ul Mulk’s judgment is a detailed and reasoned decision on the merits of the case before the court (did the prime minister commit contempt), Justice Khosa’s note is a lecture on morality (what is wrong with us as a nation).
The aim of the note is admirable: to trigger national introspection. Will it have that effect? Traditionally, the role of the judge is akin to that of an umpire in a game. Various matters come before the judge who must decide them in accordance with the law.
Should judges become moral philosophers telling us what ails us as a society? There are dangers in such an approach.
First, questions of morality are subjective questions. If a judge enters this domain, he risks being labelled as partisan. In this case, the court found that the prime minister had committed contempt and punished him. By adding through the note that the conduct is part of a larger national malady, the note’s author enters into a subjective and controversial arena. Those who feel we have lost our moral compass need to canvass the public, form or join political parties and change our political culture.
The second problem is that whenever anyone lectures another on morality, the legitimacy of the lecture is inextricably linked with the moral authority of the lecturer. Otherwise it grates. As an institution, the judiciary is at least partly responsible for where we find ourselves today. It may be felt that the introspection that is being urged has been conspicuously lacking in the said institution itself.
The point here is not to disagree with Justice Khosa’s sentiments. They are noble and genuine. The point is that a straightforward question of defiance of a court order risks through the note of being converted into a subjective question of who is to blame for where we are today. In this hammam, who is going to cast the first stone?
After analysing our national flaws, the note proceeds to argue that the judiciary has a popular mandate to punish for contempt.
This mandate it is claimed is derived through the constitution which has been adopted by the people.
It is unusual for a court which is neither elected by nor accountable to the people to claim that its power is derived from the people. Even if the entire nation felt that the prime minister was an angel, that should not influence a court trying him for any crime. The only representative of the will of the people is parliament.
We may have a dismal bunch of parliamentarians at present, but that does not mean that other institutions should now claim to be custodians of the popular will. As a nation, we should realise that our history is full of generals claiming to represent the will of the people and judges justifying such claims.
Perhaps the most troubling part of Justice Khosa’s note is his call for the people to take direct action to punish the delinquent if the executive is bent on defying court orders. It is an invitation to the mob to take matters into their own hands. The comparison made in the note with the Arab Spring or Stalinist Russia is not apt.
In the Arab world, the ‘spring’ resulted because there was an absence of genuine representative government and no independent press or judiciary. In our case, the ‘delinquent’ prime minister was charged, tried, convicted and punished by an independent court.
If the court had wanted, it could have sent him to jail. It chose not to. To speak now of divisions of 180 million people who are there to enforce court orders as the note does appears to be inviting some sort of mob rule or mob justice. Mobs are notoriously fickle and the courts may be one of the first casualties of such a revolution.
The courts are creatures of the constitution. They are bound by it. They have the final authority to interpret it. That authority brings with it great responsibility. If the perception of judicial neutrality is impaired, the entire system is jeopardised.
The writer is a barrister practising in Lahore.