Judicial Jinn (genie) – By Waris Husain

My father told me that when he was growing up in a remote village in Pakistan, his community wholeheartedly believed in jinn (genies), and he would see them often as a child. He left his village at a young age to attend school in the city, where he was able to interact with people outside his small native community and develop independent ideas.

Upon his return to the village, all the jinn of his childhood vanished, even though the people of his community who spent their lives in the village still saw them. This is the story of Pakistan’s Courts, which are viewed by average citizens as genies that magically appear to solve unsolvable problems. However, those who have “ventured outside the village” know that there are no judicial genies, just human judges who are liable to make mistakes. This means that the Court must create standards to limit its own powers, lest it become a jinn the people can’t put back in the lamp.

Jinn are described as “smokeless fire,” possessing superhuman powers including the ability to travel expansive distances unimaginable by man. In some stories, the jinn grants three wishes to an individual, allowing the wisher to accrue untold power and wealth. These supernatural abilities distinguish jinn from humans, as jinn possess a greater power to control their environment or reality.

Lately, the media has depicted politicians as weak humans, while assigning a mystic ability to the Court to unilaterally “do justice” in the country.

Some argue that if the Supreme Court had not taken notice of the Waheedah Shah controversy, the “mere mortal” Election Commission would have never punished her for slapping a polling officer. The same would argue that sugar prices were brought down during Ramazan in 2011 because the Lahore High Court set the price at 40 rupees/ kilogram, not due to the efforts of federal agencies.

While some are troubled by the Court’s erratic use of power, it seems that the public has accepted that judges can act without self-restraint or standards so long as they address the problems of the nation. The perception of the judiciary being some sort of jinn, capable of exacting such widespread justice is solidified through the expansive decisions of the Court. But this popular belief was created a few years back when judges and lawyers took part in the Lawyers Movement. These lawyers displayed superhuman courage by leading a civil disobedience campaign to remove a military dictator, Pervez Musharraf.

However, one can display superhuman courage at times of great adversity, but still be a human subject to power-hunger or fallible decision-making. The recent decisions passed by the Court are proof that the judges are falling victim to these inherent human qualities without limitations on their power. Therefore, the Court requires rules and standards on its exercise of the expansive sou motu power.

In the Waheedah Shah case, the highest court of Pakistan took notice of a simple assault case, even though it was being handled by the Election Commission. The Election Commission is a federal agency tasked with punishing candidates for illegal actions and the Supreme Court took notice of this issue before they could punish Ms. Shah. Even after the Commission levied a two year ban on Ms. Shah, the apex Court continues to hold hearings on the issue.

In the sugar case, the Lahore High Court took suo motu notice of sugar prices, abrogating the authority of federal agencies. The High Court decided that the price of sugar had been inflated to price-gouge citizens during the month of Ramazan. The Court acted unilaterally, explaining that the federal agencies that were tasked with this role were unlikely to act without the Court’s order. However, after the decision was passed, the Court lacked power to execute their decision and sugar was sold in markets for greater than 40 rupees.

Both of these examples demonstrate that the Court is acting out of a belief that it can do the job of all three branches of government without posing logistical and constitutional problems. The recent judgments by the Court cannot be explained by any singular judicial doctrine or standard, but rather seems to be a smattering of issues the current set of judges is interested in. Unlike jinn who can do as they wish, the judges of Pakistan must provide reasoning for their verdicts and foster predictability in their decision-making.

Without such predictability, the Court’s activation seems to depend purely on the discretion of each serving judge. This will create a self-multiplying problem down the line as the next generation of judges will have the same power and precedence to engage in ad-hoc decision-making. The fewer standards that are in place to limit the Court’s use of its power, the more frivolous claims will be heard by the courts, which is especially dangerous in a nation with over 1.6 million open cases pending.

The Court taking notice of such improper or frivolous claims limits their credibility to take action on issues of greater importance. The judgments of any Court are perceived holistically, therefore, if political actors believe one decision by the Court is tainted by personal discretion, then all the actions by the Court are called into question, even the worthy ones. Thus, while the Court has taken commendable action in the Mehrangate case against the military’s sabotage of civilian governments, the Waheedah Shah and sugar cases continue to cast a dark shadow on the Court’s work.

There was a time and place for the judges to show their courage, now it is time to display wisdom. In that vein, people must not perceive judges as supernatural jinn and politicians as mere mortals. Rather, they are all humans who must work together to formulate a system based on self-restraint, accountability, and cooperation.

As Justice Kennedy, of the US Supreme Court, once said “An independent judiciary is held to account through its open proceedings and its reasoned judgments.”

The paramount task for the Court should be to create repeatable and equitable legal standards that limit the use of judicial power to proper instances.

Courtesy: DAWN.COM


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