What we are witnessing is the tipping point of an acute crisis of legitimacy, where the terms of engagement between the Supreme Court and the coalition government—are no longer agreed upon. Both are engaged in a contentious battle for ultimate supremacy when it comes to political and constitutional decisions. Although both institutions are headed towards significant damage, the rift emerging within the Supreme Court of Pakistan is particularly alarming regardless of when general elections are held.
Following the recent chain of events that occurred over the past few weeks, comparisons are being made between the present crisis and the events that took place in the apex court back in 1997, when justices were passing judicial orders against each other. In the present scenario, one might argue that the news of disagreement between the honourable judges is not something which is new to us, as it has always been a recurring theme in our judicial history. However, the current ominous course could perhaps mark a new low and add a whole new dimension to divisions within the Supreme Court.
This controversial courtroom episode has revealed that it does not matter if the decisions taken at the end are correct. In fact, what matters is how these decisions are taken. As the famous maxim goes, justice must not only be done, it must also be seen to be done. If the impression given by a particular court decision is one of partiality and favouritism, then the aim of achieving justice is not attained.
It is also pertinent to mention here that in legal parlance, the ends do not justify the means. The process of obtaining justice is sometimes viewed as being more important than the final judgment itself. If the first is tainted, the second, though binding, will not be respected across the board. While no constitutionalists would object to the ruling ordering the ECP to hold elections within 90 days, it was the specific manner in which the suo motu trial was conducted that made it extremely controversial, particularly in light of the recusals that followed.
Suo motu empowers the senior judiciary of our land to enforce fundamental rights on “matters of public importance”, but the selective application of this power can cause irreparable harm to the dignity of the judiciary. Far worse is how subsequent comments from interested parties have given a political tinge to divisions within the Supreme Court, which is problematic not just for the sitting chief justice, but also for the incoming one.
The country cannot afford any of its best judges to be perceived as being associated with one political narrative or the other. Several honourable judges have also come forward expressing their concerns regarding how deeply entangled our courts are in the politics and policy formulation of this country, but at present, the judiciary is unlikely to reverse that role.
For now, safeguarding the SC’s reputation for political neutrality, public credibility and legitimacy is equally essential. An openly divided judiciary cannot meaningfully control the executive and the legislature. In view of the deteriorating socio-political framework, judges are likely to face more demanding tasks that require both intellectual diversity and collegial resilience.
One hopes, of course, that the SC judges can overcome their differences at this critical juncture in order to present a united front to the other branches of the state. They are responsible for protecting the institution’s reputation from lasting damage and have supervisory and standard-setting responsibilities. The honourable judges must realize that they are not immune to criticism and must submit themselves to institutional checks and balances. They must not continue to wield the sword of contempt of court on society in an attempt to restrain valid and necessary criticism. Judicial dissent is an integral part of constitutional law.
Hence, it is equally important for the Supreme Court of Pakistan, among other issues, to call a full court administrative meeting and put in place a rule-based or structured system that effectively regulates the composition of benches as well as the exercise of suo moto powers.