Fall from Grace?

The Supreme Court has lost its hard-won repute

ONCE upon a time, the Supreme Court enjoyed high esteem and prestige. It was both revered and feared: revered by the general public for its orders and verdicts, passed against the mighty and powerful institutions and authorities for their abuse of power and misuse of authority. The corrupt and incompetent in the Executive, ranging from the Prime Minister down to the cabinet members and heads of divisions, departments or corporations, were fearful of the Court summons for malgovernance or any complaint of corruption or embezzlement of funds. And in the process, some landmark judgments were delivered. Such judgments include, declaring the NRO illegal and the appointment of PCO judges unconstitutional; ordering criminal prosecution of the former COAS and DG ISI for their role in providing illegal funding (in the 1990 General Elections) to politicians; preventing the sale of Karachi Steel Mills to a business group for peanuts; trial and conviction of the Minister for Religious Affairs for his involvement in the Hajj scam; directing NAB to initiate criminal proceedings against the Minister for Water and Power for his involvement in corruption in the Rental Power Plants; disqualification of the Prime Minister for disobeying the Court order in recovering $60 million, stashed by the country’s President in a Swiss Bank account and ordering the Government to proceed against General Musharraf for committing the offence of “high treason” for his 3 November 2007 action against the judges of the superior courts. These verdicts were mostly given by the Full Court (comprising 17 judges) and being strictly in accordance with the law and Constitution, were quickly implemented. The Court thus built a positive image of the country and was leading the nation towards establishing a system of governance, based on strict adherence to law and Constitution and following the principles of “rule of law” and “due process”. The verdicts were widely reported and commented upon by the print and electronic media and remained the subject of discourse and discussions among experts and analysts on the TV channels. The role of the Supreme Court was generally appreciated and applauded.

These verdicts came after the “Judges Restoration Movement” in 2009. It was a long and arduous struggle, led by the bar and supported by civil society and political parties. After Restoration, the judges were transformed into a different breed: fiercely independent and impartial in conduct and rigidly and rigorously standing by the law and Constitution. So high was the respect and esteem of the Court that when the PM showed reluctance to implement the Court order in the Swiss Bank Accounts case, he was ordered to appear and answer the charge of “contempt of court”. Requests from his Office to let the PM enter the Court through the judges’ gate or the lawyers’ entrance, were turned down; not out of disrespect for the supreme executive authority, but to adhere to the constitutional principle of “equality before law’. Thus, coming as an ordinary accused, he queued up along with other litigant parties and entered through the public gate.

During the period 2009-2013, besides such high-profile cases, the Court also granted relief and remedy to hundreds of thousands of members of the poor and downtrodden sections of society, who approached it against injustices, unfair treatment and discriminatory actions at the hands of administrative authorities. Thus, approximately 25-300 letters or complaints were daily received from aggrieved persons for maladministration. It is a manifestation of the level of abuse of authority, misuse of power and discriminatory actions in the governance system! Alternatively, it was a reflection of public trust and confidence in the apex Court. All such complaints were processed by the “Human Rights Cell” of the Supreme Court, headed by a former judge of the High Court. The Cell called for reports from the head of the government department or agency. In bulk of the cases, the complaint or grievance was resolved at the administrative level and compliance report submitted to the Court. The Court would then share the report with the complainant, and if he was satisfied, the complaint was filed. Almost 90- 95 percent of complaints were resolved through this mechanism. The rest of the complaints were resolved through “chamber hearings” by the Chief Justice. Hardly a few went for regular hearing by a bench.

Side by side, the “National Judicial Policy 2009” was launched for quick disposal of pending cases at all levels of the judicial hierarchy. The judges were tasked to decide a specified number of cases and their performance was monitored. Periodic meetings of all the Chief Justices were convened and performance of the Subordinate Courts as well as Special Courts monitored. The courts extended working hours and lawyers were disciplined to be punctual, so as to facilitate the quick disposal of cases.

The results were astounding! In Balochistan, the time span for disposal of civil/criminal cases was reduced to just one year in the lower courts and less than one year in the High Court. This was performance at par with the advanced countries, where civil/criminal cases get resolved in a maximum of one year. Similarly, such time span in the lower courts of KP came down to a year and a half. In the provinces of Sindh and Punjab, the results were not so good, but there was considerable reduction in pendency. In the Supreme Court, the Bench No 1, headed by the Chief Justice, sat till late in the evening to exhaust the cause list. Thus, the pendency in this Court came down and remained around 20,000, which was manageable. Roughly, some 16000-17000 cases were annually registered and the same number disposed of. It was in this backdrop that the judiciary attained greater public confidence and higher prestige. It may be noted that bulk of the cases (almost 90 percent) are filed and decided by the Subordinate Courts and merely 10 percent go before the Supreme Court and High Courts for resolution.

Notwithstanding such stunning results, the momentum was not maintained, after the retirement of Chief Justice Iftikhar Chaudhry in 2013. The National Judicial Policy was abandoned, resulting in bulging dockets and rising pendency. Thus, pendency now stands around 60,000 in the Supreme Court and much higher in the High Courts and Subordinate Courts. Litigants have a hard time: cases take years- nay decades- to be decided by the Trial Court, followed by similar timeframes at the appellate stage, each in the High Court and the Supreme Court. There is a near collapse of the administration of justice in the lower courts. Once suffering the ordeal of litigation, no one will in his or her wildest dreams conceive of knocking again at the door of the citadel of justice.

In short, the institution of judiciary has failed to deliver. The litigants are cursing their fate for approaching the courts. They are at the mercy of the bar, for whom strikes and boycotts are a normal routine. Leaving aside the lower courts, even the superior courts do accommodate the striking counsel by granting them liberal adjournments. There is hardly any concern about the ordeal and suffering of litigant parties and perennial delays in the dispensation of justice.

The situation got further deteriorated by the split among judges in the apex court. There is a dearth of courtesy among brother judges, resulting in daily media reports of bickering among them. With poor performance and perennial delays, public confidence is shattered in the Court and its prestige has nosedived. And now it is under onslaught from the incumbent Government and Parliament. The bar is divided on political lines and the opportunistic senior counsel are standing with their respective PDM/PTI platform, disregarding the Court verdicts and clear and categorical provisions of the Constitution. Thus, even the convicts and undertrial politicians are pointing fingers at the Court. The Court has undoubtedly fallen from grace! The way and manner the Suo Motu case of holding elections in Punjab is handled is far from satisfactory. Despite the Court order and elapse of the fixed 90-day period, implementation is withheld by lingering on proceedings. Quite obviously, the pressure from Parliament and PDM Dharna have paid off! The Orders of the Supreme Court in holding elections as per the constitutional mandate are laughed at and the High Courts’ orders of release of detenus are brazenly violated. This is a worrisome development. Time to forego egos and unite for the sake of saving the institution. Better for the Court to correct its course. Let it reconstitute itself as Full Court, more so, because it is an important matter involving the interpretation of the Constitution and asked for by the parties to the case. No judge may oppose the timeframe, given by Article 224 of the Constitution. Nothing – not even Article 254 of the Constitution - authorizes the Court to extend it beyond 90 days. It will be a travesty of justice and subversion of the Constitution to resort again to the notorious “doctrine of necessity”. It will make a bad precedent and further erode public trust in the ability of the Court to stand by and “preserve, protect and defend the Constitution”.

No judge may oppose the timeframe, given by Article 224 of the Constitution. Nothing – not even Article 254 of the Constitution - authorizes the Court to extend it beyond 90 days. It will be a travesty of justice and subversion of the Constitution to resort again to the notorious „doctrine of necessity‰.