Judging the Court

Criticism of the Supreme Court in a report has been rejected by the Foreign Office rather tersely, writes Farhatullah Babar

Judging the Court
Four days after publication of a US State Department report containing some critical observations about Pakistan’s judiciary, the Foreign Office on Tuesday issued a terse rejoinder.

Rejecting the report as “factually incorrect,” it said that the courts in Pakistan were independently performing their functions in accordance with the Constitution. It took “strong exception to the gratuitous and unwarranted comments on Pakistan’s judicial system.”

Painting a negative picture, the US State Department report had claimed that while theoretically the country’s judicial system operated independently, the reality was quite different. It even casted doubts on the competence and fairness of personnel in the judicial system. The fear of contempt proceedings forbade the business community and general public from reporting on the perceived weaknesses of the judicial processes, it had said.

However, this is not the first time that a foreign agency has commented rather harshly on Pakistan’s judicial processes.

In September 2011, a high-level mission of the International Commission of Jurists (ICJ) paid a six-day visit to Pakistan as a follow up of its 2007 visit during the crisis caused by the dismissal of CJP Iftikhar Chaudhry. After meeting a broad range of people, including some serving and retired Judges of the Supreme Court, the Lahore High Court, a former Law Minister, politicians and key members of the Lawyers Movement besides members of the Bar the mission addressed a press conference also.

The ICJ mission pointedly made some critical observations about the use of suo moto powers by the Supreme Court. While acknowledging that judicial interventions may have brought relief in some cases, it asserted that the Supreme Court could not perform the functions of the executive and described the practice as “undue interference.”

The ICJ mission said that the Supreme Court was exceeding the limits of a reasonable use of suo moto powers which caused “corrosion of the rule of law and a blurring of the constitutional separation of powers.” Stressing the need for transparency in allocating cases to different benches the mission strongly recommended that “Supreme Court adopt rules setting out the criteria for the use of suo motu procedures and for the allocation of cases to benches.”

While this time the criticism of the Supreme Court has been rejected by the Foreign Office rather tersely, in the past such criticism was responded to by the Court itself in not so harsh language.
The US State Department report claimed that while theoretically the country’s judicial system operated independently, the reality was quite different

In a rejoinder to ICJ, the court’s registrar then said that the ICJ mission remarks were based on “some miscomprehension, perhaps ignorance, of the constitutional provisions and case law developed on the issue (suo moto powers).”

The rejoinder said that the procedure for processing suo motu cases was prescribed in the Supreme Court Rules and had long been settled in successive judgments. It also claimed that the people of Pakistan are “generally appreciative of the exercise of such jurisdiction because it grants relief to aggrieved parties, especially poor and underprivileged sections of society, executive’s wrongs are corrected and billions of rupees of misappropriated are recovered from the corrupt.” Whether it convinced the ICJ or the people is beside the point.

Again in 2012, during the days of hyperactive Chaudhry Court, the president of the International Crisis Group Justice Louise Arbour visited Pakistan and met members of the legal fraternity.

Justice Louise was no ordinary person. She had a distinguished career devoted to promoting the principles of justice. She was a former UN high commissioner for human rights, a former justice of the Supreme Court of Canada and the Court of Appeal for Ontario and a former chief prosecutor of the International Criminal Tribunals for the former Yugoslavia and Rwanda.

After her visit, she also made some poignant remarks.

Expressing fears that the judges who were restored through the 2007 lawyers’ movement have become “intoxicated with their own independence,” she said that the current direction threatens to upend the very democratic order that restored them to the bench.

About the case of disqualifying a sitting prime minister, she said that the judges “who took an oath to a military dictator (referring to Chief Justice Iftikhar Chaudhry’s 1999 oath under Gen Musharraf’s PCO) are not well placed to make the decision to remove democratically elected officials.” Justice Arbour even apprehended that from the direction the court had taken, it appeared that it could end up dissolving the democratically elected government with the help of the military.

Pointing to the Memo Commission, she said it “reflected very poorly on the judiciary” and added to the appearance of growing politicization.

About the Supreme Court ordering the prime minister to write a letter to Swiss authorities for reinstating criminal cases against the president, she said it indicated an increasingly politicized judiciary. Pointing out that the then CJP had repeatedly asserted that “parliament is not supreme,” she said that it was all the more important that court showed self-restraint and frame its decisions in a way that “advances the authority of all institutions,” not only its own.

No rejoinder was issued to Justice Arbour’s comments. Wisely such criticism in the past was glossed over due perhaps to a realization that there is always need for introspection and improvement in all institutions of the state.

In his book The Myth of Judicial Activism, Professor Kermit Roosevelt makes a telling comment.

“The constitution does not belong to judges, as a mystery intelligible only to a priestly caste and it does not belong to political activists, as a set of incendiary talking points. It belongs to the people. It is our responsibility to judge the court, and it is our judgment that must be decisive in the end.”

The writer is a former senator