Let us conceive a Goldilocks’ balance in judicial temperament – what is just about right? Being the nit-picky adherent of a legal text is decent – at times commendable when regimes have tried to strip the law off its moorings. But sometimes, it proves too little. Should the judge then try to be the populace’s warm comforter who, and most often who alone, is able to see past legal niceties into the holy world of absolute justice? When this world of absolute justice is one that upends economic and social market systems, the people are left with more worry than merriment.
What then is the balance? It is simple, something that lies in the middle of the spectrum. A court that has respect for the written law but does not wear horse blinds. It sees the context of the case before it and tries to come forward with a remedy that is befittingly situated. The majority that announced the verdict in the SIC reserved seats case has proven to meet this standard.
Before the court, the petitioner brought two positions. One was the legally correct one: We were declared independents by the ECP, and as independents, we joined a political party whose existence isn’t contingent upon it winning seats. Our joining is an inclusion into the party’s winning/security making it a valid candidate for reserved seats. The other, albeit the neglected one in arguments with all the A Few Good Men-esque truths it meant to uncover, was rather simple. We were PTI; we continue to stay PTI. The ECP, in a bizarre reading, behaved as if our party does not exist; with elections the next day we behaved in the most legally correct manner and are here before this court. If milords seek to see and confront the truth without fear – they in all their wisdom, may do so.
The best bet, expectations suggested, was the former position. Though incessant questioning of one judge which displayed a hawing eagerness to look behind the veil was trying to create dents in these expectations. And then we had the court’s order. We respect the position in the law but as arbiters of the law, we can’t allow law to be construed wrongly. Any fruit of a poisonous tree, however decorous it may be, retains its poison – the need thereby to nip the evil in the bud. If your documents – any of them – evince a hint at you belonging to PTI, you then are PTI, and even if you declared independent candidature, if you show us your affiliation and have it attested to by the battered party, its fold shall not be denied to you, the court ordered. Form ought not to defeat substance, and the court did not let it do so.
Where the in-part concurring minority is concerned, there is consensus over those for whom the text in whatever form reveals that they are PTI. For those betrayed by the text – respectfully due to no fault of their own –Afridi J’s position, granting them the opportunity to be heard before the ECP is more fact-sensitive than the two-member separate note. “None of them [independents] claimed to have joined SIC because of any misunderstanding of any judgment, the law, compulsion, coercion or undue influence and it is not for this Court to presume otherwise.”, it decides and while this pronouncement has little practical impact, it leaves one with a head-throbbing sensation over the indifference of law or how it is sometimes construed.
It must be addressed, lest I be viewed as a nostalgic sympathizer of judicial might and accruing plight, that there is a difference between doing complete justice when the matter and its accompanying circumstances demand it and thinking that you must do justice because the supplicants, in all their misery, need you to do it. The difference is commonsensical with the only requirement: lending a listening ear to the ones before you and not the distant echoes of the presumed distressed.
While there are, and will be, many cases where the machinery of law is utilized to mask brutality, this court’s approach of piercing through the veil to confront the (un-imagined) demons that lay behind may harken an era of a delicate balance between blind activism and restraint. That era will be welcomed.
Ali Hassan
The writer is a law student at Lahore University of Management Sciences.