Judges should be above reproach and must command unparalleled respect. This does not need to be spelled out in any official text. As a Constitutional principle, it is amplified by the conduct of institutions and their actors. Does it mean the Court’s decisions and even the judges’ conduct cannot be criticised at all? Certainly not. In democracies one can legitimately criticise both the conduct of a judge and judgments so long as that criticism is not slanderous. Fair comment, without innuendos on motives, is protected under our Constitution.
It was inevitable that the judiciary would invite criticism once it had assumed jurisdiction. This would have happened regardless of Nawaz Sharif’s disqualification. At any rate, the substance of the criticism; a non-elected panel of elite jurists disqualifying an elected leader, can be justified. But the language and shenanigans cannot! To its credit, the Supreme Court has not issued contempt notices (not yet anyway) on the basis of sloppy tweets and unseemly speeches from the ruling party.
It was inevitable that the judiciary would invite criticism once it had assumed jurisdiction. This would have happened regardless of Nawaz Sharif’s disqualification
Despite the restraint, the Court is mindful of the developing narrative. It reflects in the Court’s orders, especially passed in its original jurisdiction (increasingly employed lately) and the odd public appearance made by the Chief Justice. Must the opinions of the Court respond to any evolving narrative or public opinion in general? And secondly must the judges make public appearances giving “candid” speeches?
The superior Courts, across the world, always respond to the prevailing public discourse on different issues. We saw manifestation of that in our apex Court’s decision to allow the military courts to function. This decision needs to be viewed in backdrop of the horrific APS incident in Peshawar. It completely changed popular opinion on war on terror. In the US, the decisions in cases of Loving (1967), Lawrance (2013) that overturned Bowers (1986) and Obergefell (2015) that followed, are illustrations of SCOTUS’s opinions embracing new realities and changed attitudes towards marriage and privacy with time. The interpretation of text in the Constitution evolves as society’s social realities change. That necessarily involves factoring-in public pulse, however loosely, in the Court’s opinions. Should the Court be flexible in interpretation of a Constitutional text, is a separate and an old debate between constitutionalists who conform to the view of ‘living Constitution’ versus the ‘originalists’.
On to the issue of public appearances, we know the traditional position. A Court does not embody the popular will nor has force at its disposal but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments. Therefore, it must only speak through its judgements. Well that view needs to be tweaked a little in the modern times.
Judges can also contribute to democracy and public discourse through their speeches and lectures. Why should the judges — sitting or retired — be constrained to a life of silence? Judges like other citizens too have a right to express their opinions on matters dear to them. They can make public appearances and freely express their mind on different issues. But having disclosed their mind or expressed an opinion on an issue, the judges must recues on matters they have spoken on in public, as a judge is no longer a neutral arbiter, on such issues then.
However, just because judges can, must they also speak on all issues they feel strongly about? What happens to separation of powers then? A safety valve of recusal cannot be great equaliser in all circumstances. There is a strong case for encouraging the judges to avoid being entangled in political debates. Any participation, by a judge in a political debate, even if it is passive or negligible, could attract controversy and demean the institution. The code of ethics for the judges of the superior Courts in Pakistan, states that a judge is expected to keep his conduct ‘private’, not seek any ‘publicity’ nor “engage in any public controversy, least of all on a political question, notwithstanding that it involves a question of law”.
We respect the judges’ right to express themselves but they have to carefully choose issues they wish to address the wider audience on. It is proper for judges to speak on judicial reforms, attitudes of the Bar and capacity of the Bench or access to justice in general — but not on political questions or policy matters even if they strongly feel it is in public interest to reach out. Judicial restraint does not just apply to conduct in the court rooms.
Remember, our superior Courts’ judges are appointed through a judicial commission constituted under Article 175-A of the Constitution. They can only be removed by Supreme Judicial Council under Article 209 of the Constitution in closed proceedings (rule 13 of The Supreme Judicial Council Procedure of Enquiry, 2005). It is simply a matter of quid pro quo: If the people or their representatives cannot appoint or remove judges, then a judicial officer must not feel he or she could become an advocate of the people, especially on contentious political topics.
The writer attended Berkeley and is a Barrister of Lincoln’s Inn
Published in Daily Times, January 2nd 2018.