Daily Times

The world is really changing. In these times of suo motus and a judiciary which deems itself insulted so frequently that each transgression deserves to be tried for contempt, all criticism of the judiciary has to be carefully worded. Now the Chief Justice of Pakistan (CJP) has even ruled that in response to public criticism, the judiciary may be heard through public statements.

I am no jurist; merely a former soldier with an interest in expanding his general knowledge. To the best of my knowledge, our judicial and legal framework is built around Anglo-Saxon laws. These laws later became tinged with a smattering of Islamic laws. Since suo motus and contempt of court are of Anglo-Saxon origin, it is from there that we seek precedent.

UK’s constitution is unwritten but, from time to time, laws have been approved under which the country is run. However, much of the day-to-day legal framework is based on tradition and precedents. According to tradition, ‘contempt’ of court occurred almost invariably within the court during hearings or when the court’s orders were deliberately disobeyed or defied.

Contempt was invoked only ‘of the court’, not of individuals. There are numerous examples where the judgment of a court or of the judge(s) was not considered contemptuous, even immediately after the court proceedings ended. It is, however, for the court to decide when it deems itself to have been treated contemptuously.

Most suo motu notices were related to the proceedings of lower courts. The superior court ruled on erroneous or flawed decisions, many of which were on proceedings related to contempt by lower courts; even of procedural errors. But almost all of these were court-related proceedings where an individual or organization might have deemed to have been wronged. While contempt notices may be issued by any court, suo motu notices were an exclusive domain of the superior courts.

The CJP also desires judicial reforms, which are long overdue. If he can institute meaningful reforms which are inexpensive, swift and simple; perhaps he will not need to make himself heard again

In recent times, suo motu notices seem to have gone much farther, even beyond violation of human rights violations or occurrences like Dharnas which disrupt and cause inconvenience to the public. Notices have been issued for conditions prevalent in a hospital, even for VIP traffic protocol. Both violate human rights and inconvenience the public but are also issues related to daily governance. This court has not yet followed the precedent set by a predecessor to fix the prices of basic food items, like sugar, but seems to want to use its power to fix other issues.

I must add in defence of the court that, ‘nature abhors vacuums’ and, when a vacuum occurs, something must fill it. There is, without a doubt, an absence of good governance in the country and, therefore, someone must take up this role. Perhaps, as I commented earlier as well, this is what the court seeks to do.

While justice should be swift and sure, it must not be hasty; for quick justice is often flawed. Those who dispense justice must know that ‘justice must be seen to have been done’. Our Supreme Court (SC) is the highest court in the land and, consequently, there is no court to take suo motu notice of its actions. Nawaz might be entirely un-Sharif but he is right about one matter; the public is taking suo motu notice of judicial functioning; and their judgment might not be favourable.

The CJP is surely cognizant of this, or he would not have issued a public clarification, and subsequently defended it. However, with things the way they are, even this could rebound; being viewed as retaliatory. Justice must never be seen to be vindictive, retaliatory, or confrontational. Nor must it be seen as seeking to balance the treatment meted out to one political party, with another. Nawaz’s accusations might be inane ravings, but each judgment should defend itself.

The CJP also desires judicial reforms; which are long overdue. If he can institute meaningful reforms which are inexpensive, swift and simple; perhaps he will not need to make himself heard again.

There are many tales of justice in Islamic history. Solomon the Great was beset a problem when faced by two women laying claim to the same child; purporting to be its natural mother. Since DNA could not be tested back then, Solomon decreed that the child be cut in half and shared between the two claimants. One claimant screamed that she accepted the claim of the other woman. Hearing this, Solomon ordered the child be given to the one who would rather forsake her claim than see the child slaughtered.

There is a lesson somewhere in this tale which may also help the CJ, his suo motus and his contempt notices. Being the jurist he is said to be, it should be easier for him to figure this out than it is for me.

The writer is a retired brigadier. He is also former vice president and founder of the Islamabad Policy Research Institute (IPRI)

Published in Daily Times, February 11^th 2018.