Understanding Judicial Chaos
“Fear cuts deeper than swords” — George R.R. Martin, A Game of Thrones
LIKE the Supreme Court of Pakistan, it is normal for the supreme courts of other countries to be sharply divided on judicial philosophy and constitutional interpretations, leading to contested decisions, especially in political cases.
But what is not normal is for 15 of the best legal minds in this country to be divided on even basic institutional rules and practices (and not the outcome of cases) that are supposed to make the SC function as an efficient institution. In order to understand the current judicial chaos, three points of views have emerged.
Firstly, that the battle is between ‘good’ and ‘evil’ judges. Judges and their decisions are explained and reduced to their personal moral failings; ie, their alleged corruption or political bias.
Secondly, the battle is between judges who are ‘constitutional democrats’ and those who are ‘judicial supremists’ — as in the matter of ‘rewriting’ the Constitution or the arbitrary exercise of Article 184(3)’s jurisdiction in political cases. Thirdly, when all other explanations fail, this judicial chaos is reduced to a clash of judicial egos.
But not one of these three explanations captures the underlying causes of the present judicial chaos.
Reality becomes irrelevant because conspiracy and fears create their own dark realities.
Spectre of Faez: Justice Qazi Faez Isa will become chief justice of Pakistan on Sept 17, 2023, and will serve as CJP till Oct 25, 2024. But, surprisingly, the political and judicial campaign to neutralise or remove him has been going on since 2017.
Along with former CJP Iftikhar Chaudhry, Justice Isa is the only judge of the Supreme Court whose removal has been attempted twice — first through a direct petition in the apex court in 2018, challenging his appointment as an SC judge, and, second, through a presidential reference.
Why is there so much fear of Justice Isa and how is the judicial chaos linked to it? Firstly, Justice Isa’s tenure as CJP will certainly see a change in judicial philosophy and constitutional interpretation at the SC; but the perceived fear among some judges is that they may be sidelined, similar to what happened to judges such as Justice Isa and Justice Maqbool Baqar in the past. This fear of ‘less important’ fuels the judicial chaos.
Secondly, considering the toxicity of this judicial chaos, there is a much greater conspiratorial fear which appears to pervade the SC. This is the fear of reprisals, removal or even denial of future tenures to future CJPs. This conspiratorial fear is that the group of judges which wins the current conflict will purge the other group from the SC.
This irrational fear of reprisals, removal or even denial of future tenures as CJP might finally destroy the court as a unified Supreme Court. In short, reality becomes irrelevant because conspiracy and fears create their own dark realities.
Fear and transition: Pakistan is in the midst of multidimensional chaos primarily because of the climate of fear which surrounds the major stakeholders.
The PDM and PPP fear the comeback of Imran Khan and his future revenge politics; Imran Khan fears his political opponents and the establishment denying him his future government; the establishment fears all other stakeholders (politicians, judges, media) questioning their dominant position. And now, various media outlets and media persons support different political parties for fear of losing their positions as dominant narrative builders.
Understandably, this climate of fear also pervades the SC, with judges apparently fearing each other. But it is the two transitions — ie, political and judicial, in 2023 — which have caused this judicial chaos.
Transition years can be both black holes of fear and laboratories of change, signalling to actors that the old order is going and a new one emerging. The 2023 political transition is leading to the judicialisation of mega politics, which in turn is leading to the politicisation of the judiciary.
On the other hand, the future judicial transition is leading to changing alliances at the SC, similar to when CJP Haleem abandoned Zia in 1988 by giving a landmark judgement in the Benazir Bhutto case (1988), even though he was an obedient CJP since 1981, or when CJP Iftikhar Chaudhry abandoned Musharraf in late 2006 and 2007, even though he had not been a dissenting SC judge since 2000. Transition years force judges from judicial silence to judicial defection.
Truth and toxicity: The year 2007 saw the birth of both a powerful judiciary and a powerful electronic media. The SC has used the media both to sustain and increase its power by building up its image as a public messiah.
But the media, especially social media, have also used this space to transition from being a reporter of judicial events (as a benign judicial influencer), to a key constructer or spoiler of judicial events. Resultantly, what we are seeing is the birth of the mediatisation of the judiciary.
This is positive because it has brought transparency to this opaque judicial institution through brave journalism. But it is also negative because it has infused toxicity among the SC judges by its conspiratorial or false narratives or by overemphasising or misinterpreting judicial differences. Both the truth and toxicity of the media have also inflamed this judicial chaos.
But another phenomenon, which has inflamed this division among judges, is the discord among lawyers; with each group supporting one of the group of judges and building misleading toxic narratives like this being a battle between the legacies of Munir and Cornelius.
They don’t realise that even Cornelius had legitimised Ayub’s martial law in the Dosso case (1958), served as CJP under Ayub for eight years, and then served Gen Yahya as law minister. On the other hand, the government has played a key role in fuelling the division between lawyers through various means. Resultantly, this ‘lawyerisation’ of the chaos has added fuel to the judicial fire.
If this dangerous storm at the SC — created through fear, conspiratorial theories and toxicity — is not cleared, the judicial civil war will not end with the departure of CJP Bandial in September 2023; it will continue to rage for long after that.
The writer is a lawyer.