Mad ‘Sacred Cow’ Disease

Chief Justice Sacred CowAs I was thinking about the vilification of Marvi Memon for daring to suggest that maybe we should get the facts before we construct a shrine to Dr Aafia, it started to occur to me that part of the reason that it’s so easy to attack Marvi Memon is because she is a politician. We love to vilify them. But there is another group that is off limits for criticism – judges.

The Supreme Court has been highly political over the past few years, taking suo moto notice of all sorts of political cases as if there were no other issues in the country. The judiciary seems to have realized its political power and the fact that its become a sacred cow. Unfortunately, the result of this mixture is Mad Sacred Cow Disease.

Take the sugar price issue. Labour and Manpower Minister Syed Khursheed Shah dared to say what everyone in the world knows, which is that commodity prices are determined by the laws of economics – supply and demand. Certainly the courts should protect open and transparent markets so that there is no price fixing, but instead the LHC decided to do some price fixing of its own. When this was pointed out, the judges didn’t get reasonable – they got MAD.

“This court always welcomes healthy, constructive and fair comments on the merits of the decisions in good faith and in temperate language, without impugning the integrity or impartiality of the judge and expects that unwarranted and uncalled for comments would be avoided because judgments are based on law and the Constitution,” the Supreme Court office said in a rare statement.

But what if we believe that the judges are acting without “integrity or impartiality”? We have no problem accusing everyone in the Cabinet, the National Assembly, the Provincial Assemblies…everyone down to a rickshaw driver…of being corrupt. But the judges are somehow off limits?

The Supreme Court said that it “is following the Constitution and has played its due role assigned to it by the Constitution and law”, but I looked through the entire constitution and have not found where it says that the judges should set the price of sugar. If someone can point out that clause to me, I would be much obliged.

The same can be said about the 2009 decision on the carbon tax. Again, the constitution appears to be fairly clear in Article 77 – and the Supreme Court set the constitution aside to come to its own determination.

Criticising the courts shouldn’t be controversial, especially if the court is going to choose to insert itself into controversies.

Setting sugar aside for a moment, consider the bigger controversy which is the NRO. Human rights activists and legal experts have roundly criticised the court’s behaviour in this regard. Remember what Asma Jahangir wrote in December:

While, the NRO can never be defended even on the plea of keeping the system intact, the Supreme Court judgment has wider political implications. It may not, in the long run, uproot corruption from Pakistan but will make the apex court highly controversial.

Witch-hunts, rather than the impartial administration of justice, will keep the public amused. The norms of justice will be judged by the level of humiliation meted out to the wrongdoers, rather than strengthening institutions capable of protecting the rights of the people.

There is no doubt that impunity for corruption and violence under the cover of politics and religion has demoralised the people, fragmented society and taken several lives. It needs to be addressed but through consistency, without applying different standards, and by scrupulously respecting the dichotomy of powers within statecraft. In this respect the fine lines of the judgment do not bode well.

The lawyers’ movement and indeed the judiciary itself has often lamented that the theory of separation of powers between the judiciary, the legislature and the executive has not been respected. The NRO judgment has disturbed the equilibrium by creating an imbalance in favour of the judiciary.

The judgment has also sanctified the constitutional provisions of a dictator that placed a sword over the heads of the parliamentarians. Moreover, it has used the principle of ‘closed and past transactions’ selectively.

It is not easy to comprehend the logic of the Supreme Court that in a previous judgment it went beyond its jurisdiction to grant life to ordinances — including the NRO — protected by Musharraf’s emergency to give an opportunity to parliament to enact them into law.

The situation becomes even more troubling when we remember that only a few weeks before the Chief Justice warned that no one should question the courts, he also stated that the courts will intervene in any state organ. This statement prompted Asad Jamal to ask an important question, then: “Who will hold the courts accountable?”

Granted, that the courts are there to protect the rights of the people when the executive transgresses its jurisdiction. Granted too, that it is the courts’ job to interpret laws and intervene in case they violate fundamental rights. But who will hold the courts accountable? Should they indulge in judicial excesses? Nobody is ready to raise this question in these times of judicial activism. Meanwhile, the courts may do well to follow the unwritten code of self-restraint.

We are a nation of laws, are we not? You can read any newspaper or watch any TV talk show on any given day and there will be some discussion of accountability for the police, accountability for ISI, accountability for politicians – why can we not have accountability for judges also?

We have already seen the disastrous results of a nation of generals. Let’s not make the the same mistake and try to fashion ourselves as a nation of judges. A dictator is a dictator whether he wears a crown, a turban, khakis or black robes. Pakistan doesn’t need any more dictators, and we don’t need any more sacred cows, either. That’s just madness.

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