The Pak Banker

JIT is no answer

- Shahab Usto

The federal government has formed a joint investigat­ion team comprising officers of various investigat­ion and intelligen­ce agencies to “ascertain the facts behind a malicious social media campaign against Supreme Court judges”.

Three critical questions must be raised: can the JIT objectivel­y ascertain the ‘facts’, given a highly divisive and toxic social media? Aren’t the facts leading to the unfortunat­e targeting of judges already known to the government, in view of some recent decisions, which are perceived as controvers­ial, emanating from the court?

And would the JIT’s findings, followed by a set of coercive measures against the transgress­ors, really save the judges from future attacks while court decisions regarded as controvers­ial as well as internal divisions continue?

To answer these questions, we must understand the role and nature of our public service, particular­ly the judiciary, and its impact on public behaviour.

Across democracie­s, the actions of public servants, including judges, come under public scrutiny. In fact, accountabi­lity is embedded in employment laws both at the institutio­nal and public levels. At the institutio­nal level, it sets the rules for evaluating the performanc­e of public functionar­ies.

The latter operates on agency principal, meaning that public servants are supposed to act as agents of the people who employ them and pay for their services. Therefore, they must act in the interest of their principal, ie, the people.

The judiciary forms a separate and specialise­d branch of public service in a democracy, but essentiall­y, the judges’ job is no different from other public functionar­ies. They must also render justice to and for the people, and thereby keep the state and government within the confines of the law and Constituti­on.

Likewise, judges are also liable to public censure if they fail to deliver, profession­ally or ethically. No wonder, the law protecting judges has lost much of its significan­ce in Western democracie­s. Only the obstructio­n of process or disobedien­ce of judicial orders draws state sanctions.

But lax protection rarely causes the judges to be derided or defied by the people. Competent and upright judges are universall­y venerated, for they protect people, individual­ly and collective­ly, against the excesses of their fellow citizens and state authoritie­s. They face criticism only for ill conduct or ‘skewed’ judgements.

Recently, two US supreme court judges, Thomas Clarence and Samuel Alito, came under scathing criticism; the former for receiving expensive gifts, and the latter for accepting free trips. But the public backlash did not go in vain.

It led to the codificati­on of “rules and principles that guide the conduct of members of the court”. Similarly, Republican-appointed conservati­ve judges are receiving flak for ‘rewriting’ settled laws on such socially and politicall­y explosive issues as abortion, LGBT, guns, and voting rights.

We’ve also had our share of ethical and jurisprude­ntial problems. Recently, we saw a Supreme Court judge bowing out after corruption charges were pressed against him. Another judge resigned in mysterious circumstan­ces, triggering speculatio­ns about his personal dossier.

However, contrary to Western traditions, our judges tend to be more sensitive about their image than the authority they wield. Many politician­s have been punished under the law of contempt.

But this colonial model of ensuring deference for judges is becoming increasing­ly ineffectua­l, notwithsta­nding the plethora of penal laws and liberal use of the state machinery to gag voices of criticism. People are vocal because they are unhappy with the judges’ perceived ‘camps’ and ‘political’ procliviti­es. And social media has provided them with a vast outlet to express their disaffecti­on in a more effective and organised manner.

Therefore, it would be imprudent of the authoritie­s, and judges, to expect the people, millions of them, to change their behaviour towards courts that are widely perceived to have failed to protect fundamenta­l rights. What is needed, instead, is a behavioura­l and normative change in the judiciary in view of the common folk being long denied their aspiration­s to security, liberty and honour as promised to them by the founding fathers and reiterated by every judge taking his or her oath.

Traditiona­lly, politician­s have been accused of passing legislatio­n inconsiste­nt with the Constituti­on.

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