Justice or hubris?

The writer is a lawyer and has previously worked as a researcher at the Supreme Court
‘Hubris’ is very strong a word. It’s as strong an adjective as any that this language of our former colonial masters has to offer. Yet, hubris is precisely what Babar Sattar, a renowned legal commentator, has recently termed the jurisprudence of the Supreme Court led by the Chief Justice Iftikhar Muhammad Chaudhry.

For those who may not be fully familiar with the word’s connotations, hubris is a strongly pejorative term which refers to an utterly haughty attitude, marked by arrogance and loss of contact with the real world. Concluding his tirade, the learned commentator has disclosed how he and so many others now longingly look forward to the post-December era when, after the chief justice’s retirement, “the Supreme Court’s new leadership will … [hopefully] rebuild its self-image as a neutral arbiter of the law…”
For the sake of a sober and systematic discussion, we may first divide the writer’s multifarious claims into two distinct categories. First, scattered here and there in the article, are one-liner appraisals of four recent high-profile cases decided by the court or still pending before it. Second, there is a critique of the jurisprudential doctrine that has emerged from the Court led by Chief Justice Chaudhry. Both claims have great significance for the future of Pakistan’s constitutional dispensation and deserve to be examined dispassionately, but it is the doctrinal debate which, in my view, makes for a more fruitful discussion. Let us, however, quickly run over the cases first.

To begin with, there are two criticisms offered on the case of the date of the presidential election. Why did the court exercise original jurisdiction over the matter? Why did it override the Election Commission’s decision? And, most controversially, why did it pass an order without giving a hearing to interested parties other than the ECP? These are good legal questions and, to be fair to the critics, the court’s five-page judgement does not adequately address them.

To be fair to the court, though, its decision is not quite as inexplicable as some make it sound, and could have been better defended in the detailed judgement. The expansion of the Supreme Court’s original jurisdiction through judicial interpretation is a well-recognised development that has been going on ever since Chief Justice Haleem’s seminal judgement in the 1988 Benazir Bhutto case; in the year 2013, one can hardly feign surprise when a question about the date of the presidential election is taken up directly by the Supreme Court. Similarly, the ECP’s decision to hold the presidential poll just short of the Eid holidays, with barely a one-day error margin from the constitutional deadline, does not sound reasonable, even on the face of it. It is not difficult to see why a court would be willing to overturn it when petitioned to do so.

The only point where the court’s judgement is really hard to defend is the issue of not giving all interested parties a hearing before passing a binding order. But here too, technically speaking, the court did fulfil the minimum requirement of hearing the immediate respondent, the Election Commission of Pakistan. The commission, for the record, did submit a written response through its additional secretary, pointing out certain administrative concerns before concluding “Whatever order is passed by this Hon’ble Court keeping this requirement in view will be complied with in letter and spirit.” The critic’s point about the procedural impropriety might still hold force, but it does not justify trashing the court’s entire jurisprudence. That would be disproportionate in the extreme.

Then there is the case of General Musharraf’s treason trial under Article 6 of the constitution. Why has the court not ordered similar proceedings against judges who were complicit in the actions of November 2007?, inquires the Sattar. Isn’t this selective justice? This assertion is misleading. The fact is that, in its judgement announced on July 3, 2013, the court did not list down those who are to be proceeded against and those who aren’t; instead, paying heed to the very doctrine of separation of powers which the writer advocates so passionately, the court rolled the ball back into the executive’s court.

As promised by the prime minister, a special investigative team of senior officers was constituted by the FIA, which is presently conducting “an inquiry and investigation in relation to the acts of General (R) Pervez Musharraf of 3rd November, 2007.” The treacherously difficult decision of whom toI indict and whom to spare is now to be taken by the government on the basis of this team’s recommendations. It is hard to see how anyone can accuse the Supreme Court of selectivity on this account.

The learned writer also takes a quick jibe at the Supreme Court’s stand in its row with the Public Accounts Committee of the National Assembly. The court has long taken the view that its accounts are not auditable by the PAC since they draw on the Federal Consolidated Fund, while the PAC’s jurisdiction extends to the Public Account only. The constitution itself draws a distinction between these two accounts; it would not befit the court to ignore that distinction. Sattar also finds it ironic that a court which has, in Hamid Mir’s case, recently opened up even secret service funds to audit by the auditor general of Pakistan, is refusing to have its own funds audited by him. But this is not true. The court has never refused to have its accounts audited by the AGP; it’s only the PAC’s jurisdiction that the court is resisting. The AGP is not the PAC and the two are not to be conflated.
Finally, there is a comment made about the suo motu case concerning a multibillion rupees scam, allegedly plotted and perpetrated by the higher-ups of the Employees Old-Age Benefits Institution (EOBI) in tandem with certain other high-level public officials. Instead of doubting the writer’s motivations behind that comment, it would be more fruitful to examine it on its merits. All that needs to be pointed out in response is that, despite all the hue and cry, the court has not convicted anyone nor does it seem likely to.
A court that the very text of the constitution has saddled with the responsibility for upholding the fundamental rights of the people of Pakistan cannot afford to turn a blind eye to a scam of such proportions. It has felt it necessary to supervise this investigation and is demanding that funds be secured while the matter is being investigated so that if, at some stage, a recovery has to be effected, that would still be possible. This may be an extreme step, but, in our context, the possibility of funds getting siphoned off is not unrealistic.
In Pakistan’s corruption-riddled environment, when judges remind investigators that they cannot sleep through a daylight assault on the exchequer, one can hardly complain of judicial overreach. The reminder that investigating and prosecuting authorities should proceed impartially and stand up to the court where necessary is well-taken. Yet, it is also helpful to keep in mind that in the dozens of mega-corruption scams taken up by this super-active court over the past five years, there have hardly been any criminal convictions. Billions of rupees have been recovered but, for the most part, those responsible are not behind bars. So concerns about the erosion of the right to fair trial of public officials facing suo motu cases seem greatly exaggerated.

Even when all the objections levelled at the court’s conduct in these cases are summed up, one gets the feeling that they do not fully explain the seething anger behind the comments of the learned commentator and other critics of the court. The truth is that many of our finest legal minds, of whom the learned critic is certainly one, are adamantly refusing to come to terms with the innovative jurisprudence doctrine of the Supreme Court led by the chief justice, despite its demonstrated success.

The doctrinal differences between the court and its critics now seem to have reached a breaking point. Doubting the intentions of either side – the court or its critics – is not helpful. Nor does it help to insist on a doctrinaire position with greater and greater ferocity. The need of the hour is to sympathetically engage with the court’s doctrine and analyse its innovative aspects with a hint of imagination.

Email: umer.gilani@gmail.com