The perils of judicial populism - II

“Judges rule on the basis of law, not public opinion, and they should be totally indifferent to pressures of the times.”

[Warren E. Burger (1907-1995), Chief Justice, US Supreme Court]

If the Chief Justice’s case was before the country’s highest court of law, what was the need for the lawyers, civil society organizations, political activists and ordinary people to come out to the streets? This is the trickiest question that must be answered to understand the July 20 judgment. Also, this brings us to the first context: what transpired before the reference was filed against the Chief Justice.

There were / are attempts at finding answers to the question. Their focus is the judiciary’s past character. The boldest statement in this regard termed judiciary as B team of Pakistan Army; and appealed to it to act instead as A team of people. The first step towards this transformation of the judiciary was indicated as the reinstatement of the Chief Justice. It was clarified that since in the past judiciary had been legitimizing the military takeovers and providing them with constitutional covers, it was likely that it did slip under the pressure of the present military regime to make an influenced verdict; and that was why a ‘thrust’ from outside the court was needed to give it support. They say hadn’t lawyers come out to the rescue of the Chief Justice; he must have still been in a state of house-arrest cut off from the outside world. It was the pressure of this movement transmitted very forcefully by the media especially electronic media that got him released; otherwise he would have been made ineffective literally.

That’s conceded, but when he was out and home in his own Supreme Court with his case before the full bench, weren’t the lawyers then supposed not to be around him, taking him in rallies to various cities to address the bar associations. Wasn’t now it up to the apex court to see to his petition? Why the lawyers, civil society and political activists were there then? It was no business of them to be around the Chief Justice and the Court then.

Another such attempt presently in vogue takes strength from late Justice Dorab Patel. He is being quoted as justifying his role in the bench that validated the military takeover of General Zia-ul-Haque on the plea that ‘how could a few judges stop the coup leader when a nation of 140 million remained silent.’ This unequivocally defends the present lawyers’ movement and the participation of civil society organizations, political and religious parties in it. It worked as support to the few judges in stopping a coup leader. Now Justice Dorab Patel should rest in greater peace that a nation of 169 million did not remain silent.

Does this prove that it was this movement that midwifed the birth of the judgment of July 20? Of course, it did, but in the eyes of only those who hold such a view. It is for those who are Dorabians and believe that without such a movement no such judgment could have issued forth from the full bench of the highest court of the country. Also, this requires that they should not believe in the Constitution which clearly dismisses such military takeovers and prescribes the strictest punishment for its violators. It means that the custodian of the Constitution, the judiciary, needs people’s support to protect, defend and interpret the Constitution in accordance with the spirit and provisions of the Constitution. Without this support, the July 20 verdict could not be such a historic one. If it is so, and as it seems it is so, it is most unfortunate for our country and the Constitution as well.

It is here that we enter the third context: what is transpiring now after the judgment and what will transpire in future regarding the judgment.

The nature and meaning of the July 20 judgment as delineated and contextualized above justify the thinking that for all such cases of importance to be decided accordingly popular support will be needed. No popular support, no popular judgment. Or, if it could be worded like this: popular support ensures constitutional judgments. No popular support, no constitutional judgments. Thus, the ethos created by the judgment may appropriately be termed as Judicial Populism. Isn’t it that what Justice Dorab Patel talked about? Isn’t it that what the counsels of the Chief Justice spoke about in their speeches and interviews? Isn’t it that what came to be the target of the government and its proponents’ criticism that the sub judice matters are not contested outside the court?

Under the circumstances, what is more depressing is that we have no inkling of how dangerous and fatal this Judicial Populism may prove to be! This view is corroborated by the sheer absence of the view that judgments are made in accordance with the provisions of the Constitution. Whoever talks about the July 20 judgment, be he a common man or a journalist or a political or judicial analyst or for that matter an expert on law or a retired judge, bonds the judgment together with the lawyers’ movement: that such a judgment was not possible without such a movement. Strangely, they admit that judges are human beings and are influenced by the circumstances prevailing outside the court; but in the same breath, they declare that they judge according to the relevant laws. They are, in fact, in a vicious circle. They have no way out. Why? Because they do not want to acknowledge that their movement was a spontaneous outrage against an outrageous act of a dictator that was deliberately transformed into an organized movement. The focus of their movement was the restoration of the Chief Justice, and nothing else. It’s evident that it has exhausted itself the moment its goal was achieved.

No doubt, their movement gave rise to slogans of utmost importance such as: independent judiciary; rule of law; supremacy of the constitution; and civilian democratic rule. Have these goals been achieved? Or will they be achieved in near future? Very unlikely! However, the first step in this direction has already been taken with the restoration of the Chief Justice and undermining of the anti-constitution forces and strengthening of the judiciary.

But some of the signs, such as intimidation of lawyers differing from the mainstream lawyers and advocating the government’s case, which were already present during the heyday of the lawyers’ movement, now seem to have started maturing. Two recent incidents of coercing of a known journalist, Khalil Malik, and a popular lawyer, Naeem Bokhari, by the legal fraternity are symptomatic. What is most unfortunate is that there is no registering of FIRs or investigations whatsoever. This indicates that the lawyers’ movement is deliberately being transformed into a judicial populism.

Coming back to the contention, it may be asked why the lawyers were afraid of losing the fight. Why didn’t they trust the court? Why did they resort to agitation? Why did they take to the popular support? Why did they put an extraordinary pressure on the court? Why did they openly make statements not to accept any judgment going against the sentiments of the people? Moreover, even now why are they and the representatives of civil society and intelligentsia justifying the popular support to the court to deliver a popular judgment?

The truth in fact is that they did not trust the court, and they were justified in their mistrust of the court. The history of court’s judgments in such matters has been disappointing altogether. It appeared there was no Constitution; stage a coup and take a judgment of your choice. The courts were there to cook whatever was needed to be offered to the uniformed guests. With such a background, how can one, and if that one happens to be a lawyer who knows well the character of the persons sitting in the courts, can trust the courts.

But, that’s not all. The story needs to be retold. The man who inhabits the land of Pakistan has no moral values. He has no integrity of character. He is a man of flesh only. He is not a man of principle. He has no regard for the means; his ends justify his means. He has no conscience. In sum, the quality of man in Pakistan is at its lowest. How can then judges go beyond this state of affairs? Justice Dorab Patel admitted that. It is admitted even today by everyone. Judges whether retired or not argue like this: after all judges are human beings. This justifies every act of theirs.

Justice Dorab taunted: If 140 (or 169) million people remain silent, how a handful of judges should stop the coup? Let me be a bit disobedient here: did 140 or 169 million people take oath of protecting the Constitution? No, lords, it were you who took the oath. So, it were you who defied their oath. It were you lords who did not protect the Constitution. It were you lords who lost their integrity. Not the people. You misled the people, and then blamed them.

My Lords, as is said, a judge does not need to be learned in the science of jurisprudence and the laws of the land; it is two lawyers, plaintiff’s and defendant’s, who teach him that; what is required of a judge is integrity of character. My Lords, did you prove that? Or is otherwise? My Lords, do you need 140 or 169 million people at your back to make judgments in accordance with the provisions and spirit of the Constitution? My Lords, do you know this begets judicial populism. This is begetting judicial populism. My Lords, do you know the perils of judicial populism. It will destroy whatever little is left of the rule of law in Pakistan? It will destroy supremacy of the Constitution, independence of the judiciary, and turn the society of Pakistan into adventurous warring groups of gangsters. My Lords, I believe you did not need any popular support; you did not need 169 million people at your back to protect the Constitution. My Lords, so many people like me who believe in the rule of law are eager to be made sure that you did not need any popular movement to issue the July 20 verdict. My Lords, you know that will change the context of your judgment altogether. That will put your judgment in its proper context.

[This article was completed on August 11, 2207. See the first part: The Perils of judicial populism - I]