Only the SC can save the SC

Delaying elections that are otherwise required to be held within a period of 90 days violates the letter and spirit of the constitution. This is an open-and-shut case that hardly requires any adjudication.

Nothing can justify such a blatant fraud on the constitution. There can never be good enough reasons to postpone general elections, and what is good enough to postpone provincial elections would also be good enough to postpone national elections. If you get away with this, you would get carte blanche to get away with everything else. To me, it is not less than a coup. And endorsing it is equally sinful.

I was too quick to predict that the Supreme Court (SC) would save us this time too, swiftly and neatly – exactly how the speaker's ruling on the VONC last year was set aside, and the National Assembly was restored by the SC within no time. It turns out I was terribly wrong.

My friends ask me: ‘If it is as simple as you put it, what has puzzled the SC then?’ So much so that this case seems to have divided the entire SC into two parts. To date, the entire nation is confused about what exactly the decision of the top court is. You can hardly blame a layperson when one half of the entire SC says that the Article 184(3) petition (the election case) was dismissed by 4:3, and the other half insists that it was allowed by 3:2. Must have been some outclass advocacy or an ingenious argument, one wonders, that an otherwise simple case has resulted in a constitutional crisis.

The truth is: no one pulled a rabbit out of a hat. To me, the outcome of the election case is equally plain and simple as the case itself – the election case was allowed by the Supreme Court with a direction to the ECP to hold elections as mandated under the constitution. Why then the confusion? Sadly, and for reasons to follow, the fault this time lies within the Supreme Court itself. None of the dissenting notes state that elections ought not to be held within the 90 days or that there is plausible justification to delay them. In fact, and on the contrary, even those dissenting expressly recognize the importance of the unambiguous need to hold elections within time. What's the dilemma then?

Undoubtedly, the Supreme Court is at its worst. The public perception is that there are two Supreme Courts for all intents and purposes. The pro-CJP group and the anti-CJP group. The constant tussle between the two groups has called into question the very survival of the judiciary. Whether it is the appointment of judges to the apex court or actual cases being heard by the Supreme Court, unfortunately, the top-most consideration is camaraderie and alliance between the two groups while everything else, including the constitution and the law, takes a second place.

For almost two years, there has been a constant struggle on the appointment of judges to the top court. While the public was debating the merit vs seniority debate, many now believe that unfortunately all this time it was nothing but a tussle between two groups within the Supreme Court. Imagine the plight of a litigant who faces a bench that consists of members from both the groups. He would always fear that instead of a decision on merit, his case might fall prey to the undeniable disharmony between the two groups of judges. For him, even if justice is actually done, it can never be seen to be done.

The code of conduct of judges requires a judge to remain apolitical and not to be part of any political controversy, to maintain harmony with brethren judges, and not to get involved in a public controversy, least of all on a political question. And yet where do we stand? One half of the nation thinks the CJP camp is pro-PTI and the other half thinks the anti-CJP group is pro-PDM.

For me, the real loss is not that elections won't be held on time. This would not be the first time elections are delayed. We have even survived so many coups. The worrying aspect is that the very existence and legitimacy of the Supreme Court itself is under threat this time. Let's snap out of all of this for a second and focus on the basics. Why do we need a court in the first instance, and what's the real source of power behind judgments?

The primary function of a court is to resolve conflicts, whether it is someone's entire life savings or a matter of life and death for them. They leave it in the hands of judges with blind faith that they shall do them right without any fear or favour. Judges have the power to make or break governments. Things freeze when they order them to freeze, they move when they order them to move, they can confiscate from one and bestow to another, they can even imprison them. If they sentence them to death, they even accept that and die without protesting. But why should people trust them or have faith in them if they have a conflict of their own or if they are at war with each other? It is for this reason that I fear the conflict between the members of the top court is absolutely destructive of the very idea of justice.

Justice is divine, and those dispensing it must be perceived to be free from all kinds of weaknesses. Unlike other statesmen, judges must be completely selfless, issueless, and blind to everything else except the law. It is primarily for this reason that judges are treated with utmost respect. They sit on high benches, their entrance and exit from the courtroom is designed in such a manner that at no point in time can they cross paths with the ordinary public, litigant, or lawyer. They maintain a fair distance even at public events.

As lawyers, we bow before them when entering or exiting their courtrooms. We never call them by their first or last names but as ‘My lords’ or ‘Your lordships’. Even when we know that their understanding is patently incorrect, we are taught never to confront them bluntly but to put across our point with utmost respect and humility. For instance, we see many lawyers beginning with ‘My lord, perhaps I have not been able to express myself clearly’ or ‘your lordships are absolutely correct’ – and then politely disagree with them.

All because we fundamentally believe in the fiction that judges are superhumans. It is this perception that brings legitimacy to their judgments and not the letter or spirit of any law. If the perception is gone, we have lost it all.

Why can't the superhumans of the Supreme Court keep their human differences aside – at least when sitting in court or performing official functions? If not for anything else, then for the sake of the poor people of this poor nation whose only hope, even after all of this, is no one else but the Supreme Court.

The writer, a barrister-at-law, is an advocate of the Supreme Court of Pakistan.