Judges cannot be experts at everything. That is why they need to stick to the law and let experts frame policies
Growing up begins with naiveté and simplistic enthusiasm. If one is lucky, it leads gradually to an understanding of complexity.
Let’s take the idea of power. Enthusiasm tends to look at power in terms of what can be done with it; wisdom begins with appreciating the limits of power: this is what I cannot do and, therefore, I will set the limits on what is doable.
International Relations literature, in large measure, is as much about the exercise of power as about the limits and limitations of power. The history of war is even more specific on this score: you can win all the battles and yet lose the war.
History is a good way to appreciate the significance or otherwise of a moment. It has a nasty way of informing us that many civilizations before us had their own significant moments. That we mustn’t think that ours is a unique experience that, if realized, will lead to something history has never seen before. But history is like Tiresias in Eliot’s The Waste Land, the ‘old man with wrinkled dugs,’ who serves as a bridge between the ancient and the modern and, having seen all, perceives the scene and foretells the rest.
On June 28, Chief Justice of Pakistan Saqib Nisar admitted, as per news reports, that he had failed to “put [his] house in order.” That’s a commendable admission by someone who has tried with much earnestness to rid the body politic of its many warts and carbuncles. There’s just too much complexity to deal with. There’s the paradox, the interactive dynamics, the inability to predict outcomes, the unintended consequences, the best-laid plans going awry.
Clausewitz talked about the fog of war. But the fog affects every aspect of life, individual and collective. One has to set one’s goals in terms of is-es, not wishes. Imagine if Hercules’ labors required him to formulate and implement policy. Or, asked him to figure out why the United States, despite so many deaths, cannot implement effective gun control. Or, work out the abortion problem between pro-life and pro-choice groups. I am quite certain that he would have preferred to fight the lion and the hydra and the boar.
Modern life is a different kind of hydra. Its complexity defies enthusiasm and linear, simplistic solutions. Aggregating conflicting interests is a bigger challenge because it often requires making choices that will not pass the morality test of a primer.
There’s also the additional problem of taking shortcuts. There’s an urgent need to streamline the lower judiciary because the courts must be strengthened as an institution. So, how should one look at the honorable CJP entering a courtroom with TV cameras in tow, creating a spectacle with the judge in the chair, admonishing him and throwing the presiding judge’s cellphone on the table while all of this is being recorded?
There’s only one way to interpret it: far from strengthening the courts, it belittles the institution. While hierarchies are important, a judge in his court is even more so. My jurist friends tell me that lower courts fall under the purview of respective High Courts. In which case, we have a bigger problem here. As the Karachi Bar Association resolution argues, while “The CJP is the ‘pater familias’ of the judiciary… He must protect the dignity, prestige and respect of the entire judicial institution of Pakistan and not merely judges of the apex court.” The judge in question, Zamir Solangi, has already tendered his resignation. Disturbingly, when his resignation was reported in the media, the Sindh High Court registrar sent a statement to media outlets saying that the letter circulating in the media was a fake document and the judge had not resigned. The judge, who had at the time switched off his phone, later confirmed that his resignation letter was genuine and indeed written by him. In other words, to put it politely, the SHC administration tried to control damage by putting out a false statement while probably asking the judge to take back his resignation.
That did not happen, and for good reasons.
There have been other instances and obiter dicta that leave one scratching one’s head. The private schools issue is a case in point. I am not much enamored of private schools and I feel, just like the honorable CJP, that private schools fleece parents and treat their staff shabbily. They pay pathetic salaries to their staff and the owners act as robber barons. Yet, it’s an issue with many complexities. To think that nationalizing private schools will solve the problem—especially, before the public schooling standards can be improved—is akin to parachuting from a high-rise holding onto a kite and expecting a safe landing.
Judges cannot be experts at everything. That is why they need to stick to law and let experts frame policies. Economists, political scientists and sociologists have written tomes on complex issues and theorized. But given the interactive dynamic, much still remains elusive. It’s in the nature of human affairs. If everything could be worked out, we would be rid of politics and simply administer. Everything would work according to plan. It doesn’t.
Mike Tyson it was who, when told that Holyfield, his opponent, had a plan, famously said: “Everyone has a plan until they get punched in the mouth.”
It’s the same and more with complexity.
Haider is the executive editor at Indus News. He was a Ford Scholar at the Program in Arms Control, Disarmament and International Security at the University of Illinois at Urbana-Champaign, and a visiting fellow at the Brookings Institution, Washington, D.C. He tweets @ejazhaider
The views expressed in this article are the author’s own