Feisal Naqvi

The Uncertainty Principle and Judicial Intervention

In Uncategorized on October 10, 2013 at 3:49 am

It is now customary for the Chief Justice of Pakistan (CJP) to inaugurate every new judicial year with a speech. This year’s address by the CJP was notable because, for the first time, his Lordship seemed to notice that his activist approach towards the Supreme Court’s (SC) jurisdiction had not met with universal approval.

His Lordship chose not to defend himself, instead stating that he would leave the issue for future historians to determine. What he did say though was that 1) judges of the SC were “conscious of the suffering and agony of persons who suffer a wrong or injury but have no access to justice” and 2) that he himself was satisfied the Court had acted against “acts of oppression, tyranny, exploitation, corruption and misuse or abuse of authority for personal benefit”.

There are two obvious points which emerge from the CJP’s speech. The first is his assumption that the proper way for the SC to end the suffering of persons with no access to justice is for the SC itself to intervene. The second is his view that the Supreme Court exercised its powers to end “tyranny, exploitation, corruption”. Both points are debatable.

For better or worse, our culture has a romantic view of justice. Every visitor to the Lahore Fort still gets told that Emperor Jahangir had placed a bell outside the Diwan-e-Aam which any commoner could ring to demand justice from the emperor. And even modern day politicos like to think of themselves as offering Adl- e-Jahangiri to their constituents. Back in 1999, Mian Nawaz Sharif had introduced a system where he would sit at a desk and answer calls from aggrieved citizens, all in full view of PTV’s adoring cameras.

The truth is that Adl-e-Jahangiri was a myth even at the time of Jahangir.

Jahangir was an alcoholic mess whose kingdom was run by his wife and her family. And if Jahangir’s subjects had seriously thought they could approach him for justice, the emperor would never have gotten any sleep.

My point here is simple: justice is not just an ideal but a service. In a country of almost 200 million people, not to mention a country whose laws are both dysfunctional and antiquated, providing justice is not — and cannot be — the responsibility of any one man. Instead, justice has to be provided through a ‘system’, which takes into account not just the judiciary, but also the police and the entire body of our laws.

I do not doubt the CJP’s statement that he and his brother judges have worked incredibly hard to try and reduce pendency and delays. The problem is that those delays were not due to the failures of individuals and cannot be removed due to the efforts of individuals. Those delays exist because our entire system of justice is dysfunctional. It cannot be fixed through individual high-profile interventions, no matter how well intentioned.

Instead, it requires an overhaul of the entire framework of governance. And, with all due respect to the CJP, the fact remains that he has not ushered in any systemic changes in the administration of justice in Pakistan.

I come now to the CJP’s belief that the SC has used its powers to oppose acts of tyranny, exploitation and corruption. I have no doubt that the CJP certainly believes this but there is a ‘chicken and egg’ problem here.

If intervention by the SC requires a prior belief by the Court that it is faced with ‘acts of tyranny, exploitation, corruption’, then what room is there for the Court to later conclude that perhaps, ‘tyranny, exploitation, corruption’ were not involved? In theory, the Court has the option of saying that its assumption of jurisdiction was unjustified. But an admission of error is always problematic, even for judges. And I have yet to see it happen in any suo-motu case.

Neither the UK courts nor the US courts recognise the concept of ‘suo-motu’ cases. This is because Anglo-Saxon jurisprudence is based upon a vision of the judge as a neutral, passive arbiter of justice. However, when the Court takes suo-motu cognisance of an incident, it is, in fact, certifying that an act of ‘tyranny, exploitation, corruption’ appears to have occurred even before it formally examines the matter.

In 1927, the scientific world was rocked by Werner Heisenberg’s formulation of the Uncertainty Principle. Heisenberg’s contention, which has since been affirmed repeatedly, was simple: that one could not know both the position and the momentum of a particle with absolute precision because the very act of observation was bound to affect one of those two properties.

The reason why the Uncertainty Principle matters is because it marks a realisation by scientists that there were limits to their knowledge, that there was a margin of uncertainty which was irreducible. In simple terms, one cannot reduce life and its incredible complexity to a set of measurements.

The truth behind the Uncertainty Principle applies with equal force to judicial observations. If the Court is to determine whether a particular act constitutes an act of ‘tyranny, exploitation, corruption’, then it should not be involved in identifying that act. Once the Court itself becomes involved in the process, the incident changes because it acquires an official stamp of misfeasance. It is no longer an incident to be examined and adjudicated; instead, it becomes a crime to be investigated and punished.

There is nothing inherently wrong with an inquisitorial system of justice. Most of the world functions on the basis of inquisitorial systems. However, inquisitorial systems have their own weaknesses and their own mechanisms for ensuring that their flaws are corrected. One cannot simply adopt the inquisitorial system — that, too, at the level of the highest court in the land — without adopting all the other back-up mechanisms evolved to prevent error from creeping in.

Lawyers are now beginning to think about a judiciary no longer headed by the current CJP. His ultimate legacy is certainly one which will be debated for years to come. What I fear though is that we will remain infatuated with the concept of Adl-e-Jahangiri and once again, fail to reform our systems of justice.

Published in The Express Tribune, October 10th, 2013.

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