Chief Justice Khosa has a way to make his words memorable. Whether recalling Mario Puzoand upending Khalil Gibran, or articulating his vision on the occasion of farewell reference for his predecessor, his statements resonate; not just in the corridors of power.
Now his stirring speech marking the new judicial year is doing the rounds, not for the newness of what he said but why the top guardian of the Constitution found it necessary to read the sealed lips of many. Perhaps a touch of defeatism there but one can't quibble with what he had to say.
Yes, he did touch upon the achievements on his watch - the model courts and disposal of 35,000 cases over a four month period (doesn't matter if this impressive output is not enough to ensure the outcome of people's confidence in the judicial system) - but that got lost in the litany of concerns in what reads like his valedictory address.
Shrinkage of political space, lopsided accountability smacking of 'political engineering', muzzled media and suppression of dissent is a serious indictment of the entire governance apparatus. Of course, he couched it in terms of public perceptions that cause disillusionment and loss of confidence in the system, but to the uninitiated it carried a ring of mea culpa - 'through my fault'.
The Constitution bestows extraordinary powers on the Supreme Court. It has the sole prerogative to interpret the Constitution, and it is the duty of every authority to act in aid of the Supreme Court. It is the ultimate court against whose verdict there can be no appeal, even where it exercises original jurisdiction.
To protect fundamental rights, undergirding the social contract between the State and its citizens, the Constitution sees the Supreme Court as the 'guarantor of last resort'. Article 184 (3) endows the Supreme Court with powers to make an order where it considers a "question of public importance with reference to the enforcement of any of the Fundamental Rights ..... is involved". The Supreme Court has the discretion to act on its own (suo motu) in this regard.
When the bar and the bench lament the shrinking political space and lopsided accountability they don't have to look far to unearth the reasons: it is happening under their nose.
Supreme Court's strength - unfettered powers to ensure constitutionalism -risks becoming its weakness. The manner in which these powers have at times been exercised has forced an institutional introspection. Did looking at the trees make us lose sight of the forest? Could the objective have been achieved without heavy armoury? Were the right battles chosen?
Perhaps it is this introspection that makes the Chief Justice advocate active judicialism rather than judicial activism. He has a point - some did take activism too far, often blurring that fine line between dispensing justice and dispensing the law - but is one possible without the other?
Even a cursory look at the non-compliance by the executive of the number of Constitutional dictates underscores the need for Supreme Court's activism, albeit exercised judiciously. Who do the people turn to if the legislature and the executive deny to them their basic needs and trammel their fundamental rights? Going through the normal judicial process is not really a workable proposition for most.
The growing despondency may not manifest itself in street agitation but it is definitely seeping into the national psyche, and people are finding socially disruptive ways to vent their frustrations. Total lack of road courtesy, trying to get ahead of the other by means fair or foul, littering while accusing the government for failure to manage waste are the easier examples.
More pernicious is silent non-cooperation - unwilling to pay our dues unless there is no way out, breaking the law where we can, wanting all to be subjected to rule of law - ourselves excepted.
In siding with Iqbal that this soil is fertile we are in search of excuses - we would do wonders only if we had the right leadership, happily forgetting our own role in either not choosing right or acquiescing when wrong choice is foisted on us.
Despondency, the flip side of defeatism, has a hollowing out effect on the nation. Inherent in every dictate of the Constitution is the duty of all three organs of the state to check loss of trust. But none has a greater responsibility than the courts. Justice is the key, and that is why the exceptional empowerment of the judiciary.
Supreme Court can't be seen to be tilting at windmills. It has to choose its targets well and not vitiate its energies on checking schools or hospitals. It has to attack the causes of dismay.
We are not in full compliance, if not in violation, of at least 13 Articles of the Constitution, most of them dealing with fundamental rights and principles of policy. These range from redressal of inequalities and exploitation to promotion of social justice, particularly with respect to compulsory secondary education and inexpensive and expeditious justice.
Nothing is more sacrosanct than personal liberty. The Constitution is unequivocal in this regard (Articles 9 and 10). And yet the case of missing persons lingers on, strong anecdotal evidence of people being 'arrested' and not produced before a magistrate persists, NAB law allows people to be kept in detention for extended periods and now the bail window has also been shuttered.
Equality before law (Article 25) is another fundamental principle that is seen more in its violation than observance. Qazi Faez Isa, J. may have touched the authorities in the raw when he pointed it out in the matter of selected people being authorized to retain prohibited bore weapons but for most citizens it is "show me the person and I will show you the rule".
Finally, can democracy flourish where dissent is forcibly suppressed? Will the proposed media tribunals become another orchestra that makes us sing the same hymn? Will it protect the right of free speech or maul it?
The Chief Justice has put his finger on the causes of our growing despondency and loss of faith in the system. We submit these can be corrected through active judicialism only when it is buttressed by judicial activism of the guardians.
We only urge less sound and fury and more accountability - of those who violate their oath of office.
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