The familiar adage of ‘justice must not only be done but must also be seen to be done’ highlights the importance of the ability to see the judiciary as unbiased arbiters of justice. This is precisely why when the institution of the judiciary becomes controversial it makes the whole of the justice system susceptible to taints of controversy. And that is one thing the judiciary is always careful to stay away from. Unfortunately, we have come to a pass – yet again – where perceptions of [in]justice prevail, that too over the apex court. In the latest matter before the Supreme Court, the government has raised objections over the inclusion of two judges in the larger bench hearing suo-motu proceedings regarding the delay in the announcement of a date for elections in Punjab and Khyber Pakhtunkhwa. The government has demanded the two honourable judges recuse themselves. Bringing up an alleged audio leak related to one of the judges, and raising questions about partiality, the government has been pointing to what it calls ‘bench-fixing’ for a while now. From Maryam Nawaz’s no-holds-barred speech on Thursday to a joint note by the PPP, PML-N and JUI-F asking for recusal of two judges to Defence Minister Khawaja Asif urging the SC to form a full court to hear the election date case as well as review some older cases, including the Panama case, we now have a full-blown crisis emerging.
At the heart of the matter are two equally important issues: one, the perception among one set of political actors that some in the courts are aligned more with the other side of the political divide. And, two, a rather glaring divide within the bench itself. Three judges on the nine-member bench have raised a few questions that take the entire case into a different direction – one of the honourable judges airing reservations about the justification of suo-motu jurisdiction in this matter while the other two SC judges questioning the dissolution of the assemblies in itself. With the Pakistan Bar Council too wading into the debate, this issue has now become far too contentious to not be addressed by the court.
Perhaps it would be in the best interests of all – most of all justice itself – that the courts resolve these perceptions before anything else. Whether justified or not, the fact is that this has now become an issue. Such episodes are unsavoury and should be avoided because further scandalizing the courts will only result in judgments also losing their relevance and potency. It is also time long-standing concerns regarding judicial reforms were settled, taking into account the opinion of constitutional experts, retired judges and bar associations. While dissent and disagreement between judges reflects a democratic mindset, an openly divided SC and the legal fraternity is not a good look for the justice system. Even worse is the political realm seeing the institution of the judiciary not as separate from but as part of the political machinations in the country. We need to avoid this at all costs and ensure the judiciary occupies the lofty stature it has rightful claim over. For that, we return to the adage of perception of justice being as important as justice itself.