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Thursday March 28, 2024

Supreme Court on trial

It is hard to agree with Asma Jahangir’s scathing critique of the Supreme Court’s interim order in t

By Babar Sattar
January 07, 2012
It is hard to agree with Asma Jahangir’s scathing critique of the Supreme Court’s interim order in the memo case. While ordering a factual investigation into the matter by a judicial commission comprising three high court chief justices with a tremendous reputation of integrity, the court has neither ruled on the authenticity of the memo nor assigned responsibility for its conception. It has only opined on the scope of Article 184(3) and its own jurisdiction to hear a matter involving national security that could impinge on the fundamental rights of citizens. And thus from a jurisprudential viewpoint, expansion of the scope of fundamental rights is a welcome development.
Yet Asma Jahangir has an unblemished record of struggling against oppression and speaking truth to power. Her disquiet cannot simply be dismissed as the outburst of a lawyer who cannot handle an adverse ruling. The swiftness and alacrity with which the Supreme Court has moved on the memo case has ignited some fears. Historically there has been a marriage of convenience between the generals, judges and pro-establishment politicians. This military-judicial-political complex condoned and abetted military coups in Pakistan that led to subversion of the constitution and disruption of the political process. The decision of Chief Justice Iftikhar Chaudhry and his fellow judges to stand up against General Musharraf and his second coup in 2007 was unprecedented.
The decision of our judges not to yield to the whims of a dictator and the epochal public movement that led to their restoration created a sense that spring was in the air and the unholy alliance between judges and generals that legitimised military intervention in politics stood dismantled for good. The Supreme Court’s enthusiasm for the memo case – in a backdrop of generals flexing their muscle against an elected civilian government and asserting their power from behind the scenes – has filled proponents of constitutionalism, democracy and rule of law with the apprehension that the apex court might still have an affinity for our khaki saviours.
Second, the manner in which the Supreme Court has encumbered Husain Haqqani’s right to travel freely without a prima facie case having been made out against him suggests that he has been denied the benefit of the doubt about who conceived the memo. This in turn has kindled the creeping sense that where a civilian is pitted against the generals, whether in the realm of law or politics, there simply exists no level playing field. Even the highest court of justice in the land, ordained to ensure legal equality in an otherwise unequal world, is not impervious to the haunting realities of power. The argument then is that if the court cannot ensure that justice is not only done but also seen to be done, it should just stay away from such controversies and not allow quality of formal justice to be compromised at the alter of power.
In short, the critique of Asma Jahangir and many others who share her fears has brought into question that role and ability of the apex court to function as a neutral arbiter of the law. And for this reason alone it is imperative that that the judicial proceedings in the memo case be carried to their logical conclusion under piercing public scrutiny. And that the proceedings of the judicial commission and the Supreme Court be critiqued in good faith to evaluate their neutrality and merit. This will help dispel the state of disbelief that our judges, despite being the guardians of the constitution and our fundamental rights and liberties, are ultimately men of expediency, devoid of the ability and courage to mete out justice in a contest between David and Goliath. After all what useful purpose can the courts serve if their role is limited to entrenching social, political and economic inequalities in the name of law?
On the other hand the Supreme Court’s ruling that it is competent to hear a matter relating to national security in so far as it involves fundamental rights is promising. One, the memo case involves no political question best left by the court to be addressed by another pillar of the state in view of our constitutional scheme of separation of powers. Two, the judicial trend of throwing out petitions on technical grounds of maintainability is a dying one and rightly so.
The courts should certainly be deferential to the executive when it comes to matters of policy and their wisdom. But courts must ensure that our rights to life, security, liberty and dignity are not reduced to the black letter of the law. And to this end recent jurisprudence produced by the Supreme Court (as well as the Lahore High Court) upholding and interpreting rights as guarantees of a meaningful life for citizens is to be applauded.
Why should a matter be consigned to the dustbin merely because it involves national security, the holiest of all cows? Does it not bode well that national security has finally stepped outside the exclusive domain of the khakis? When was the last time that the army chief and the DG ISI (or any serving general for that matter) submitted himself before a court of law in Pakistan? Why should the court be expected to look away when asked to determine whether or not Pakistan’s envoy to a foreign state made an offer that compromises Article 9 and 10 rights of Pakistanis under the constitution? Would it strengthen rule of law in Pakistan if instead of being adjudicated before courts of law in full public view, the ‘troikas’ and such illegitimate centres of power in our polity continue to brawl over and resolve differences related to national security behind closed doors?
The misgivings against the Supreme Court are a product of the premature (and uncharitable) conclusion that the apex court is incapable of doing justice in a matter wherein the army chief and the DG ISI have exhibited personal interest. And these fears have not singularly been nurtured by the court’s actions or orders in the memo case, but by its omissions and indifference vis-à-vis other cases wherein the allegations of abuse of fundamental rights are much more blatant. For example, what would it take to get the Supreme Court to fix for hearing the Asghar Khan case and adjudicate the alleged involvement of the ISI in distributing funds and cobbling together the IJI? Why do we no longer see the kind of enthusiasm in the missing persons’ case as evident in the memo case? What became of the Supreme Court suo moto proceedings in the Kharotabad butchery incident?
In short the manner of exercise of the Supreme Court’s administrative powers in determining the court’s roster and priority of cases is such that it is bringing into question the discharge of its judicial functions. Further, the convergence of views of our honourable Supreme Court judges in matters where reasonable lawyers can be expected to disagree, as evidenced by lack of dissenting judgments generally, is uncanny. And it raises the apprehension that our apex court might still be devoted to the doctrine of paterfamilias that threatens to eclipse the freedom of thought and expression within the corridors of justice, diminish the rigor of jurisprudence being produced by the apex court and transform 16 distinguished jurists to a mere extension of the chief justice.
There is little reason to believe that the judicial commission headed by Chief Justice Balochistan Qazi Faez Isa, will submit to the wishes of the army chief and the DG ISI while deciphering facts surrounding the infamous memo. While impugning the integrity and motives of the Supreme Court as opposed to critiquing the merit of its rulings will do democracy and rule of law no service, the growing scepticism over the role and performance of the apex court calls for introspection within our hallowed corridors of justice.

Email: sattar@post.harvard.edu