What happens when judges enter the political thicket?
ast week, a South African umpire in a cricket match between Pakistan and India was at the centre of a controversy. He made a call against Pakistan at a critical moment. Pakistan lost. Many fans viewed the call as clearly wrong and pivotal. Imagine if the umpire had been Indian?
Imran Khan, the great cricketer, led the call for neutral umpires to be introduced in cricket. This was resisted for a long time, particularly by the English. They maintained that their umpires were the best in the world. The peak of an English cricketing umpire’s career was officiating in a match involving the English team. Eventually the world cricketing community realised that neutral umpires enhanced public confidence in umpiring decisions.
Why does neutrality matter? It is premised on a basic principle that no adjudicator should have any interest in the outcome of a contest. It is easier to accept a poor or marginal decision made by a neutral umpire. It is easier to accept because the losing party will have comfort that the decision is not motivated by a nationalistic bias, conscious or unconscious.
Judges adjudicating disputes should be neutral umpires. Their code of conduct requires them to refuse to act in any case involving their own interest or the interest of any person they regard and treat as near relative or close friend. Judicial neutrality and public confidence in the impartiality of judges is a key feature of a stable polity.
Neutrality is not the same as wisdom or competence. A neutral umpire can give a poor decision. As long as it is not motivated by malice, the society can accept it and move on.
In Pakistan, in certain key decisions, judges have not acted as impartial umpires. This is a stain that haunts the institution. Justice Isa gave a speech at a conference recently in which he stated that individuals should be criticised for poor decisions rather than their institutions. An institution is an artificial entity comprising some individuals. Its conduct and reputation are defined by the individuals who act in its name. For change and institutional credibility, a new course needs to be charted by individuals who choose a different future.
What happens when judges enter the political thicket? Inevitably, this impacts the public perception of neutrality. Where courts are used to decide political disputes between contestants for political power, the losing party and its supporters frequently allege partiality or double standards.
This should prompt judicial caution in this arena. The doctrine of “political questions” provides that the Judiciary will not interfere in political matters. Given the separation of powers, certain matters are to be left to the Executive or the Legislature. Foreign policy is traditionally cited as a classic example of a political matter best left to the Executive. Similarly, law making is a matter to be left to the Legislature.
Political battles should not be fought in the courts. It is the voters, not judges, who have the task of electing and removing their leaders.
These traditional demarcations have been rendered largely meaningless by the courts and litigants who seek to use the courts to achieve political aims. After losing the 2013 elections, Imran Khan sought to defeat Nawaz Sharif in the Supreme Court. The Panama verdict gave him a judicial victory over his political opponent. This was celebrated by him and his supporters as a triumph of the rule of law. He himself has now been disqualified by the Election Commission at the behest of his political opponents. Political battles should not be fought in the courts. It is the voters, not judges, who have the task of electing and removing their leaders.
This does not mean that courts cannot get involved in cases where politicians have taken decisions or where their conduct is questioned. Laws in violation of fundamental rights can be struck down; as can decisions by the Executive in violation of law. That is the hallmark of a society governed by laws and not individuals. But when judges start looking into the hearts and minds of politicians and start attributing dishonest motives to them, questions are bound to be raised about judicial neutrality and past judicial misconduct. The institution is not free from sin and to command respect it needs to remain humble and introspect about its questionable past.
Institutional harmony is premised on inter-institutional respect with each institution respecting the domain of the other. Just as we should not have judging by politicians, we should not have a government of judges. An unconstrained system of judicial review with judges having unbridled power as regards judicial appointments and accountability does not inspire confidence. It diminishes the moral authority of the institution.
A declaration adopted on September 24, 2012, by the United Nations General Assembly reaffirmed that “human rights, the rule of law and democracy are interlinked and mutually reinforcing... they belong to the universal and indivisible core values and principles of the United Nations.” In Pakistan, political consensus appears to be emerging that recognises the importance of these core values.
Last year, Nawaz Sharif was to address the Asma Jahangir conference in Lahore via video link. The internet was blocked in an attempt to disrupt the speech. The then PTI government was unconcerned about this censorship of what was characterised as a foreign funded conference with a hidden political agenda. The test for genuine advocates of human rights and the rule of law is that you stand up for the principle regardless of the consequences or the circumstances. Whether you are in power or not, a voice cannot be silenced because you disagree with it or because you attribute dubious motives to the speaker or organisers of a conference.
Institutions and departments must realise that for a prosperous and secure future, it is crucial that they operate within the roles assigned to them under the constitution. That is what their oath of office requires of them. The greatest service they can do to their country is to abide by the oath they have sworn, and stick to their job.
The writer is an Advocate of the Supreme Court of Pakistan. His email is firstname.lastname@example.org