- How far should the judiciary go?
By: Saad Amir
A global pandemic is the quintessence of a health emergency. Governments around the world are tackling the fallout of covid-19 through a range of bold and novel interventions. Given the unprecedented nature of the threat and the need for urgent action, some of these interventions have impinged upon fundamental rights, including the rights of movement, association, and even the basic right to earn a livelihood. The leeway governments are afforded in such times to make informed decisions on-the-fly must reflect the gravity of the situation faced. It is in this context that an appropriate judicial response to the fallout of this pandemic ought to be fashioned.
The recently concluded Supreme Court proceedings in Criminal Petition 299 of 2020, an appeal challenging the Islamabad High Court order granting bail to a category of under-trial prisoners, offers a glimpse into the Supreme Court’s understanding of its role in these times; one which may be in need of review and course correction. The observations made are based on a single but significant intervention sought to be made by the Supreme Court, relating to the closure of Out-Patient Department (OPD) wards in hospitals across the country in April.
A brief segue into constitutional theory may help contextualize the observations which follow. Democratic constitutions, including ours, envisage a distribution of power and division of labour amongst the several branches of government (the legislature, the executive, and the judiciary), with checks and balances shielding each branch from the invasive tendencies of the others. Such checks have historically afforded a purely deliberative institution, such as the judiciary, room to breathe and carve out an institutional space for itself: a case in point being the hard-won and harder-kept independence of the judicial branch in our own country.
The seeking out of and over-exposure to the fickle world of public opinion has the potential of chipping away at the traditional roots of judicial legitimacy, and undermining the enterprise of democratic government which our constitution enjoins the organs of the state to collectively undertake. In these times of profound introspection and uncertainty, the superior judiciary might do well to also direct its probing gaze inward and consider structuring its more discretionary powers, and acting with greater transparency, restraint and circumspection in their exercise
This division and distribution of powers can and ought to be read on a broader plane though: to be in service of the joint enterprise of government. In other words, the mutual relations of the several branches of government are meant to integrate these branches into a workable government. In some contexts, this will play out in a supervisory manner where the aim is to check and hold the other to account. At other times, the branches will engage cooperatively to support each other’s role in the joint endeavour. For such collective action to work there must exist reciprocal respect between the great organs of the State. In practice, this would include respect for each other’s jurisdiction and an understanding of where and when the other institutions are better placed to make a decision or carry out a task.
That brings us to the proceedings in the under-trial prisoners appeal. On 6 April, the Chief Justice of Pakistan (CJP), as part of a five-member Bench hearing the appeal, expressed dissatisfaction at the decision taken to close OPD wards across the country for people suffering from ailments other than COVID-19.
On 8 April, a meeting was also chaired by the CJP in which Federal government officials, including the Advisors to the Prime Minister on Health and on the Ehsas Programme and the Chairman NDMA, briefed the Supreme Court justices regarding the response of the Centre and the Provinces to the pandemic. The issue of OPD closures was again raised at this meeting.
On 9 April, OPD wards at several Sindh hospitals were made operational, as were OPDs at government-run hospitals in Punjab and the ICT, and at Medical Teaching Institutions (MTIs) and district-level health facilities in KPK. These decisions were either stated to have been taken in order to comply with directions of the Supreme Court, or perhaps were precipitated by sentiments expressed by the Bench whilst hearing the appeal. Any such deference would be understandable given that executive authorities throughout Pakistan are obligated by Article 190 of the Constitution to act in aid of the Supreme Court.
The Pakistan Institute of Medical Sciences (PIMS), however, decided against re-opening its OPDs, in spite of orders from the ICT administration, citing concerns that that OPD operations could risk an outbreak of the virus, and observing that the emergency department at PIMS hospital was playing an effective role in treating patients. Subsequently, on 13 April, the 12-member Corona Experts Advisory Group (CEAG) in Punjab, which includes leading health experts, also strongly recommended the closure of OPDs in government hospitals across the province and opposed the decision to reopen the OPDs. The group cited findings of a global scientific study which said that 40 percent virus transmission was reported from health professionals to the general population, on account of the former being frontline actors in the fight against the pandemic. It stated that the assembly of hundreds of sick people under one roof in enclosed premises would increase the probability of transmission of the virus.
This opening up of OPDs in the second week of April after several weeks of closure followed immediately by reclosures is a cause for concern. Intuitive but non-technical commentary on matters of public health coming from the highest court in the land, whilst well-meaning, is not conducive to formulating a suitable and coherent response to the ongoing crisis. Executive authorities have over the years acclimatized to an environment in which unsystematic demands are placed on them by judicial overreach. They may thus second-guess their best judgment in deference to the opinion of the Supreme Court. In a worst-case scenario, such deference may put the lives of health professionals and the general public at risk. Accounts pouring in from hospitals around the world, at the frontlines of the COVID-19 pandemic, attest to the ingenuity of health professionals faced with novel challenges which they are neither trained nor properly equipped to tackle. Difficult, ethically challenging and at times counterintuitive decisions are having to be made on a routine basis. These decisions, whether being made by health professionals or more generally by those devising and implementing public health policies, ought not be made while wondering whether they will pass the test of judicial approval.
A separate but related concern has to do with the effect of bold judicial interventions (historically through the exercise of suo motu powers) on public perceptions of the judicial branch, and its sources of legitimacy. The increasing frequency of these interventions has had implications for an institution which derives its legitimacy from its perceived disinterestedness in the dispensation of justice.
To elaborate, the very act of choosing what to take suo motu notice of can be viewed as an expression of interest. The Supreme Court’s past forays into a form of inquisitorial justice have by and large met with popular approval. Though the predilections of individual Chief Justices may shape the manner and frequency of the use of suo motu powers, it would appear that the public gaze and a recent history of expectation have helped cast the superior judiciary in a new irresistible mould: the judge as saviour and protector of the masses from the “mess and menace of politics”. But the seeking out of and over-exposure to the fickle world of public opinion has the potential of chipping away at the traditional roots of judicial legitimacy, and undermining the enterprise of democratic government which our constitution enjoins the organs of the state to collectively undertake. In these times of profound introspection and uncertainty, the superior judiciary might do well to also direct its probing gaze inward and consider structuring its more discretionary powers, and acting with greater transparency, restraint and circumspection in their exercise.
 ‘Sindh hospitals begin opening OPDs days after Supreme Court’s criticism’ (https://www.dawn.com/news/1547840/sindh-hospitals-begin-opening-opds-days-after-supreme-courts-criticism)