Narrating the chronicles of our most esteemed superior courts of Pakistan, over the past many decades, has been a painful endeavour. Recently, in these unprecedented times, the judicial odyssey has become heart-breaking.
Case in point – just this week, members of the honorable Court have sparred over the formation of its benches, written public letters to expose its dirty laundry, suspended the military courts judgment, proceeded against a judge that has fallen out of favour with the system, heard (at length) the case of a man who was hanged almost fifty years ago, overturned an order to restrain appointment of (biased) executive officials as returning officers in the upcoming elections, issued contempt against the person who highlighted the bias, and snubbed anyone who wanted to argue otherwise.
And, to be clear, all this was just this week. A slower than usual week, as the Court prepares for the winter break.
To lament this would be futile. After all, this is nothing new. We have seen all this before. Much like that guy, some fifteen years back, who sat on the seat of justice and thought himself infallible. The one-eyed man, who was king in this land of the blind. And then again, some years later, that other man who sat on the same throne and took on the task of fixing our polity, while make a Dam on the side. Or the others during this time who (during fleeting moments of insignificance) donned the robe of immortality. Where are those men today? What do they do with their time, now that they no longer hold the magic wand? And how will the unforgiving hand of history write their obituaries?
But despite historical lessons, disappointed is somehow deeper this time around. And in an age where information travels at the speed of light, it has now become impossible to create any excuses for the indefensible deceit that is the ‘project of justice’ in our land.
Why is the disappointment deeper in this fresh episode of judicial odyssey? Well, for a multitude of factors – three of which are particularly notable.
First: the fact that we had all expected this ‘group’ of honorable judges, this awaited hierarchy of the Court, under the auspices of honorable Chief Justice Isa, were going to be different; they were going to be the flagbearers of a resurgent sense of constitutionalism. All through the years of boorish activism by Chief Justice (R) Saqib Nisar, and the period of judicial impotence by Chief Justice (R) Bandial, there had been whispers across the bench and bar that ‘we fix this when Justice Isa becomes Chief’. That the dark period of judiciary serving as an instrument of the de facto power structure, will come to an end. That the glean of Fundamental Rights will banish the unconstitutional overreach by entrenched shadows. That democratic protections and the electoral process will be unimpeachable. That fundamental rights of political workers – especially those who wish to protest against this callous system – will be protected. It had been hoped that CJ Isa - flanked by the likes of Justice Shah, Justice Afridi, Justice Minallah and other fabled jurists – will unwrite our historical wrongs, ushering in a new era of constitutional entrenchment in Pakistan. In hindsight, very humbly submitted, this expectation now seems laughable at best. We are passing through a period of unprecedented constitutional aberrations. And all of it is happening with unprecedented impunity.
Second: the judicial drama is being enacted on live television, with no real way to ‘spin’ what happens. In the past, moments of judicial significance (good or bad) happened away from public view, and it was the job of a few intermediaries – mostly lawyers and court reporters – to communicate what happened, along with reasons for the same. And this mystique of judicial proceedings, hidden from public view, retained a myth that the honorable Courts are unbiased arbiters of legal questions. Anytime someone suggested otherwise, they could be muted through the threat of contempt.
However, convinced of its own greatness, the honorable Court has recently allowed people a window into its (live) proceedings. And for the first time, the people of Pakistan have seen for themselves the tenor and temperament of our seat of justice. They have seen the inexhaustible patience of our honorable judges, and the sacred ethos of the constitutional debate that takes place in our courtrooms. They have seen champions of democracy – from members of the Asma Jehangir group, to the unbiased interim law officers – argue in favor of delaying elections and prosecuting civilians through shadowy proceedings. They have seen that, even as citizens languished in dark cells across Pakistan, on undeclared charges, the honorable Court insisted on focusing its energies on the banal proceedings of its internal procedural law. And if that wasn’t enough, we saw the court assemble to consider an issue that no one really cares about (anymore) in this country: what should have been the legal outcome of Zulfi Bhutto’s case. Live. Uninterrupted.
These episodes have collapsed the ideal of an independent judiciary, giving way to a much more sinister proposition: that the Courts may be, and may always have been, partisan participants of our political paradigm.
Third: unlike the past, we live in the electronic age of permanent and irrefutable record. And this makes the situation inextricable. What the people have seen, cannot be unseen. What they have experienced, cannot be undone. And these judicial proceedings, as well as comments from the respective judges and lawyers, will remain part of the electronic memory of our people for many a decade to come. And each time anyone argues in favor of judicial independence or integrity, they will be confronted with undeniable record to the contrary. Record that shows honorable members question each other’s motives and agendas. Record that shows a different scale for hearing one political party, and an entirely different for others.
MiLords, we will hold our tongue in respect for the seat of justice you occupy. But, while no one can show a candle to the sun, may I submit with great humility that, in the final analysis of things, national memory does not recall the judicial reasons or expediency behind the constitutional see-saw of the 1990s, or the Reqo Dik judgment, or the Hudaybiya case dismissal. History only remembers that the honorable Court was instrumental in derailing the democratic process, in causing billions of dollars of penalty to our national exchequer, and in helping the powerful elite avoid financial accountability. Everything else – inclusive of cogent judicial reasons – is irrelevant. In the same vein, when the final chapter on this period of our judicial history is written, it will say (factually) that the electoral process was delayed, civilians were incarcerated and tried behind the shadows, political inclinations were discriminated against, and our project of justice permitted, if not facilitated, the plan. And this time, on the back of pervasive technology, people will remember all the names and faces. Everything else, MiLords, will be irrelevant.