Oscillations of the judicial pendulum between two ideals, the rule of justice and the rule of law, has been occurring since Athens. According to Plutarch’s history of Athens, there was clear-cut segregation between systems of Solon and Theseus of Athens. Latter was a heroic figure, the hero who detested against oppression and inflicted severe punishments by use of his strengths on the unjust. In comparison, Solon disliked the idea of activism as he believed in institutions and rational laws. The substantive difference between rule of law and rule of justice has been revealed by the variance of opinions between Solon and Theseus.
Throughout the history of South Asia, the rule of justice has prevailed. Even before the conquest of Muslims, Kautilya’s Arthashastra illustrates how the rule of justice prevailed through rulers and their subordinates. Accordingly, the hierarchical system of administration powered subordinates to maintain justice in the names of their rulers. Postdate majority rulers followed the suit. The Bell of Justice during Jahangir’s era (1605-1628) is a prime example of this. Basic idea was to present himself as accessible to his public so that people in need of justice can ring the bell. Symbolically it was praise-worthily, but practically it was an eye wash measure.
Similarly, Article 184 (3) of the Constitution of the Islamic Republic of Pakistan is the contemporary version of Jahangir’s bell of justice. The provision of collectivized security of fundamental rights for subjects of state to move to the echelon forum has been given under this suo moto clause. In contrast to normal legal proceedings, without any petition and aggrieved party, the apex court has jurisdiction to take notice of matter of its choice where solely it acts as prosecutor and adjudicator at the same time.
Darshan Masih vs. The State (PLD 1990 Supreme Court 513) can be taken as an example of a limited use of this power by Supreme Court to act as a godfather for the neglected communities and marginalized people who are denied of their basic rights and freedoms. However, the Lawyers Movement made judicial activism aggressive and the apex bench has not missed an opportunity to grandstand politically side by sidestepping in the governance matters. Resultantly, these interventions have weakened the state institutions and halted the reforms process.
Interventionist behaviour of the apex court has favoured it in diverting the attention of the nation from the abysmal situation regarding the disposal of cases. In Pakistani jails, a pending trial held prisoners are two-thirds among all. Court backlog in Pakistan judiciary is estimated at around 1.9 million cases along 43,000 cases before the apex court. Civil cases took inter-generation to conclude according to research conducted by Justice Jawad S. Khawaja.
According to the World Justice Project (WJP, 2020), Rule of Law Index Pakistan stands at 120th place among the 128 countries included in the survey and in South Asia it stands at 5th place among the six countries in the region showing a poor public perception of Rule of Law in the country. Since the courts have not been successful in providing justice at large, the rule of law is not much prevalent in Pakistani society. Prevalence of the rule of law serves as a foundation for communities to achieve accessibility to the judicial system, free and fair trials, speedy proceedings, and respect for fundamental rights.
Following his predecessors, Justice Gulzar Ahmed’s (CJP) court took his first notice under the suo moto regarding the combating of the pandemic coronavirus. Once again the apex court has issued a decree regardless of any assistance from health experts. This is problematic in its entirety as it transfers power from the elected public representatives in taking governance measures to the unelected bench who have not any expertise in the field. Therefore, there is a dire need to define the rules and criteria for applicability with a procedure for the hearing of suo moto.
Holistically analysis of the judiciary would result in a hybrid of both, where the pendulum is mostly tilted towards the rule of the justice system while rhetoric is about the rule of law. Since Iftikhar Chaudhary’s court, the independence of the apex court has increased manifolds. However, governance of state affairs falls under the power of the executive apparatus and ultimately they ought to determine these. To avoid any future institutional rift, the Supreme Court ought to leave behind the role of just emperor and work on court backlogs to improve ground realities. Otherwise, the situation will only worsen with time and would end up in abrupt failure of the institution at any point in time.