For the court to think about

What is the Panama case? Is it a media trial or a court trial? Is it the 2018 election campaign that has started prematurely? Where is the long-cherished norm of public behaviour that a case that was sub judice could not be the focus of discussion out in the open?

In the olden days, the judiciary was kept aloof from public pressure, discouraged from socialising and shielded from the political agenda of either the government or the opposition. Now, in the age of mass communication, it seems that the institutional functioning of the higher courts has been overwhelmed by the crossfire among the rival contenders for power.

How can the judiciary allow itself to be deemed good or bad, partisan or impartial, weak or independent, minute by minute according to the tenor and idiom of court proceedings or the projected final verdict? It is true that political and constitutional cases have often ended up in controversy. In the past, the judiciary typically focused on the issue of independence from the executive. From the perspective of the current political environment, it has been obliged to safeguard its independence from both the noise on the street – characterised by demonstrations, press(ure) conferences and slogans – and the media, especially TV coverage.

If the Supreme Court had imposed a ban on extra-judicial input into the judicial proceedings, the daily routine of the pendulum of public opinion moving from one end to the other would have become a thing of past. Ever since the Panama case hearing started, its entertainment value has overtaken its judicial importance in the context of a strictly legal approach. Various anomalies have followed from that.

The day starts with production of ‘evidence’ in the court that the rival party hardly considers as one. That is followed by questioning from the bench and answers by the lawyers. The electronic media then reports the court proceedings, followed by a press conference or at least a mini-meet-the-press conversation and a forceful rebuttal from the other side. Finally, the prime-time TV programmes get engaged in commenting, analysing, discussing and ‘covering’ the day’s events. It is amazing to see the nerves of the viewers moving in circles. The circus goes on because there are several stakeholders who would fiercely like the case to end up on one side or the other. In sum, the case has been overly politicised.

The first casualty was rooted in the spillover effect of the political controversy created by the PTI leadership about the new chief justice of the Supreme Court for being partisan. The latter felt obliged to form the requisite bench by extricating himself from it. It is not directly comparable to what happened sometimes in the case of a lower court in the midst of a case hearing relating to the blasphemy law when the courtroom was surrounded by an unruly mob demanding a verdict of a certain kind. But, this amounts to an indirect contribution towards the formation of public opinion which provides a certain ‘moral’ context to keep a judge away from the bench.

Second, there is a great dilemma of judging the case according to the rules of game of one institution – the judiciary – while the rules of the game of the parliament as the foundation of government formation according to the principle of majority on its floor operate through an entirely different logic. We have experienced a clash of institutions earlier when former chief justice Iftikhar Chaudhry dismissed the then prime minister Gilani, even as he enjoyed the support of a majority in the National Assembly. This remains the first ever, and, till now, the last example of the Supreme Court directly dismissing an elected prime minister. These acts are in contrast to similar actions performed by bureaucrat governors-general – such as Ghulam Mohammad and Iskander Mirza – the military coup-makers or presidents like Ishaq and Leghari who were equipped with the killer clause, Article 58(2)(b).

The practice of broadcasting public comments for and against the ongoing arguments of lawyers from the PTI or the PML-N – the opposition and the government – is in fact not representative of the game of numbers on the floor of the National Assembly. The PTI’s demand for the resignation of Prime Minister Nawaz Sharif preceded the issue of the Panama leaks. It represents the model of resignation first and its justification later – be it election rigging, the perceived ‘dictatorship’ of Nawaz Sharif, or corruption.

Why is it not an issue between the government that wields a majority on the floor of the National Assembly and the non-PTI opposition that far outweighs the PTI opposition in the national legislature? The answer lies in the non-parliamentary logic of politics that has dominated the parliamentary politics for some time. The ‘aggressive’ political participation in the name of representing the nation has harmed the parliamentary form of government which must operate according to the game of numbers.

How is it that the non-PTI opposition does not share the logic, initiative or blame game of the PTI? How is it that the PTI and the PML-N continue to exchange allegations of various kinds with reference to the Panama case while the case is sub judice? Their idiom is extremely partisan. The timing of their intervention is non-judicious, to say the least.

The Supreme Court seems to be in a state of denial about serious encroachments on its territory. Its institutional ethos that is supposed to be rooted in insularity from the bipolar or, for that matter, a multi-polar, world of politics seems to have been overshadowed by the strong winds of public opinion blowing across the world of electronic media.

What should the court do to shape a neutral environment to hear the Panama case? Perhaps the minimum requirement is that the cacophony of statements, accusations and counter-accusations and predictions of the doomsday for one or the other party must stop. The Supreme Court could and should see to it that a sub judice case is really considered sub judice by the parties involved as well as by the media. Otherwise, the principle of justice will continue to evade the practice of judicial performance in terms of the daily routine of court hearings and the expectations of society.

Both the defenders and opponents of Prime Minister Nawaz Sharif must stop their rhetorical performance in the form of personal attacks. Let the judiciary take care of it. As for the Supreme Court, it must impose its own rules of game on the litigants who seem to have transgressed the available legal space and opted for influence-peddling. In this regard, the media hype is unproductive, misleading and unhelpful for a fair judgment. We must allow an untainted and unprejudiced social and political environment to flourish. This would be conducive to the cause of justice and do more to strengthen democracy than the present rigmarole.

The writer is a professor at LUMS.