Sins of the past

EDITORIAL: Surely, a senior Supreme Court (SC) justice speaks not just for himself but the entire judicial hierarchy when he opens old wounds, as Justice Athar Minallah did during an address to the New York City Bar Association, and acknowledges the apex court’s “past shortcomings in legitimising unconstitutional acts”.

SC judges have, lately, betrayed a manner of remorse at some of the decisions of some of their predecessors, especially those that facilitated military coups. Yet Justice Minallah went a step further and emphasised on record, that too before an international audience, that failure to uphold the “sacred obligation” to defend the constitution “constitutes misconduct and warrants accountability”.

So much for words, though unprecedented, novel and admirable as they are, but the proof of the pudding lies in the eating and the honourable court will have to back these words with actions and take concrete steps not only to penalise judges that misused their authority and violated the constitution but also to ensure that its newly minted image of sincere defender of the constitution is established and endures.

He didn’t break any fresh ground with revelations of politicians complaining when verdicts don’t suit them, especially when they are in power. This is simply a part of the game that all judges all over the world must deal with. In fact, the country where he was speaking is notorious for its higher courts’ judgments coming under severe scrutiny and criticism from not just political groups, but also a very charged media.

What he did not touch upon, though, was the charge that he and some of his colleagues sometimes overstep their duty of defending the constitution and indulge in interpreting it in a way that appears to be rewriting the law. Such controversy is not surprising in broken down democracies like Pakistan’s where a powerful establishment casts a long shadow over all important institutions and politicians blinded by the lust for power will go to any length to back their cases. That is why such arguments are impossible to settle within a legal framework.

But the judiciary, with its newfound determination for a 24/7 defence of the sacred constitution, still needs to build a charter that will strictly confine it within its mandated realm. After all, it is known, as Justice Minallah readily admitted, for easily lending legitimacy to violations of the constitution before, and people, politicians and institutions will, and should, need more than the word of a judge or two to accept such excesses as part of the past that everybody wants to move on from.

These are no doubt times of great pressure for the legal fraternity. It’s been dragged to the centre of all the political bitterness and controversy for no act of its own. And this is constantly adding to the thousands of cases in backlog – another feature of the Pakistani judicial structure that he did not mention in New York.

But doesn’t this give the judiciary a new puzzle to solve? Must it bend to every political storm and give it priority over its real duty and the people’s rights? Must it keep adding to the backlog, delaying and denying justice to the people of Pakistan who have nothing but the courts to turn to?

These are the questions that nobody has yet focused on. And as much as defending the constitution is integral to the work and domain of the Supreme Court, so too is delivering timely justice to the people of Pakistan. It is important to answer for the sins of the past, no doubt, but in a way that does not compromise the present and/or future.

Copyright Business Recorder, 2024