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February 15, 2018

Vigilante justice


February 15, 2018

In the annals of Pakistan’s justice system, the suo motu will be inscribed as the most glaring example of a national obsession with quick fixes.

From ‘police encounters’ to ‘military courts’, our nation’s penchant for ‘quick fixes’ or the ‘means justify the ends’ argument is a serious problem. The suo-motu notice is just another example of that.

While the Supreme Court of Pakistan has a constitutional mandate to uphold the constitution, it has to do so within certain parameters. One of those is that judges must not allow their subjective values to interfere with their functions. However, the court’s suo-motu power has become a headline grabbing instrument – at the cost of the millions of pending cases in the court’s docket.

The judiciary seems to have adopted the role of judicial vigilante, with a slew of suo-motu notices being announced every day. Consider for a second that a recent survey found that there are currently 1.8 million cases pending before the courts in Pakistan. Yet, it is not those cases that are being heard daily but the more populist ones – foreign accounts, alleged contemptuous speeches etc – that garner attention.

One wonders then: what are the criteria for certain cases to get priority over others? Is the property dispute of a poor family not just as worthy? Is the determination of the guilt or innocence of an accused not equally important under our constitution? There is something wrong with the idea of judges skimming the news to see which issues they feel most passionate about and then taking suo-motu notice on them. Our justice system’s docket cannot be that subjective.

This preference for issues that judges feel most passionate about has trickled down to the high courts as well. Over the past year, the Lahore High Court seemed to be developing a predilection towards hearing ‘public interest petitions’ – at the expense of, once again, the 1.8 million pending cases. And many lawyers noticed this, resulting in an increase in ‘publicity interest petitions’, where they search for newsworthy issues that can be raised before a judiciary partial to such claims over others.

The lack of priority given to ‘ordinary’ cases is ignored by proponents of judicial activism by using the ‘means-ends’ argument. The response to all criticism is: ‘Justice is being done”. However, this is a rather shallow view of the matter. Our constitution mandates that justice be done in a particular way that doesn’t involve judges stepping into the shoes of the police or other branches of law enforcement. Why then does our Supreme Court take such pains to investigate foreign accounts and criminal cases? Would we feel equally comfortable if the police opened up its own court system and started dispensing justice? It would, after all, be the same blurring of the boundaries between institutions set by the constitution.

So, while hearing an order that the culprit in a horrific murder be apprehended in 72 hours sounds good, it shows a myopic understanding of a how a thorough police investigation works. We want a suspect who is brought before a court on the basis of ‘beyond reasonable doubt’, not mere expediency.

Such forays into realms unfamiliar to the judiciary are problematic not just from a constitutional perspective, but also because of the perception they create in the minds of the people. Everyone laments how the people of Pakistan fail to hold our elected leaders and the institutions they govern accountable through the ballot, but one reason for this is because the people have become obsessed with quick fixes: the judge who reads the headlines and takes action of his own volition. Why then waste time holding the elected accountable, for lack of institution building, through the boring and long-winded process of democracy?

It is through the ballot that major issues in our country will be resolved and our law enforcement and mechanisms of accountability will change, because the ballot represents the shifting perceptions in our society. Without that shift, real change will not come about. It wasn’t a change in law that got American women to start speaking out about sexual abuse; it was a change in social perception and the mobilisation of people. So, while suo-motu notices are nice to read about, real change can only come about through democracy.

The writer is a lawyer based in Lahore and also teaches at LUMS. He holds an LLM from New York University where he was a Hauser Global Scholar.

Twitter: @HNiaziii

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