Justice Nisar’s retirement has left the judiciary in a strange conundrum

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THE previous chief justice of Pakistan Saqib Nisar initiated 38 suo motu cases in 2018 alone; about three each month. By the time of this writing, 16 of the 38 cases had been disposed of. Not a single dissent has been recorded. In choosing not to dissent, the judges who shared the same bench with chief justice Nisar acquiesced in those decisions.

His retirement now leaves some of these judges in a strange conundrum. They can either carry his populist and activist agenda forward with the same force and vigour, or they can retreat like the Supreme Court did after the retirement of Iftikhar Chaudhry by choosing to exercise greater restraint. Neither option bodes well for the reputation of the court.

It is fairly obvious that an activist judiciary that is bent on aggrandising power at the expense of other organs is not good for the development of state institutions. Collecting charity, visiting hospitals, setting prices are not tasks suited for judicial intervention. Many judges on the Supreme Court appear to understand that, which is why it is likely that we will see a paradigm shift in how the court approaches its docket under Chief Justice Asif Khosa.

But if this prediction turns out to be true and the Supreme Court takes an about-turn — as one prays it should — it means that either the justices have had second thoughts about their previous decisions and have changed their minds, or it means that during all this time they were never in agreement with the last chief justice but maintained silence for some other reason.

CJ Nisar’s retirement has left the judiciary in a strange conundrum.

The first explanation is not reassuring at all; the law is simply what the Supreme Court says it to be and if the highest court of the land changes its position on what the law is so quickly and abruptly, the twin virtues of stability and continuity which are so important for the rule of law are lost.

If, however, they did not dissent despite genuine disagreements with chief justice Nisar then it raises question marks about how decisions are actually made at the Supreme Court? Does the chief justice exercise a disproportionate influence on how other judges sharing the bench with him vote? If judges don’t agree on a particular outcome, should they be under a legal — not conscientious — obligation to record it? What are the constraints that discourage judges from recording their disagreement publicly?

One can argue that dissent harms collegiality amongst the judges, who prefer debating behind closed doors rather than disagreeing in public. Scholars of judicial behaviour call this tendency ‘dissent aversion’.

That may be true to some extent but if the previous chief justice was persistently violating the Judicial Code of Conduct and had his fitness to hold public office challenged by the Women’s Action Forum, then it would appear that an individual sitting on the same bench would want to distance himself from those actions. What better way to do so than to file a dissent? The fact that many still chose not to do so may appear to suggest that most judges are willing to incur reputational costs over damaging their relationship with others on the bench.

Another possible explanation is that judges — in game theoretic terms — behave strategically by trying to maximise their pay-offs. They are pleasing two constituencies at the same time; by letting the chief justice take the charge and write the majority judgement, they don’t get to shoulder any of the blame for judicial overreach and by not dissenting, even if they disagree with what’s been going on, they don’t get caught on the wrong side of the chief justice either. Perhaps, as legal realists argue, decisions are made based on extraneous considerations with collegiality being one of them?

To be fair, it would be wrong to use the voting pattern in suo motu cases alone to pass general observations about the homogeneity on the Supreme Court.

There is certainly some difference of opinion between the justices — as evident from a powerful dissent by one of the judges on the court — but when it comes to the adjudication of suo motu cases, these differences can be easily suppressed. The chief justice can use his broad administrative powers to constitute a bench, fill it with like-minded judges and assign all suo motu cases to it. Since chosen members of the bench could share the same worldview, the probability of divergent views emerging from the case would be reduced. This isn’t good.

So apart from the need to regulate the Supreme Court’s suo motu powers by taking it away from the office of the chief justice and conferring it upon the Supreme Court as a collective body, there is also an urgent need to inject greater transparency into the process by curtailing the chief judge’s power to establish/reconstitute benches and assign them such cases. Justice Mansoor Ali Shah’s powerful call to protect “the independent view” of each judge ought to be taken seriously.

The writer is a lawyer.

b.soofi@gmail.com

Twitter: bbsoofi

Published originally in Dawn, January 27th, 2019

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