Wages of injustice

A short order of a three-member bench of the Supreme Court has declared Nawaz Sharif and Shahbaz Sharif ineligible to hold public office. The decision wasn’t unexpected for those who had been following the Sharif ineligibility case. But it was unfortunate and disappointing nevertheless. It resulted in the fall of the PML-N government in Punjab, became a specious apology for imposition of emergency and governor’s rule, and precipitated further political turmoil in the country already afflicted with a multifarious systemic crisis. The court decision and the follow-up actions of the Zardari-run executive make patent to the thinking minds of our nation the repercussions of tolerating and condoning a state of affairs where the ruling regime practices autocracy in democratic garb and the gatekeepers of justice become racketeers in pursuit of petty personal gains.

“We are not unaware that we are not final because we are infallible; we know that we are infallible only because we are final,” wrote Justice Robert Jackson of the US Supreme Court in 1953 in a concurring opinion upholding that the Supreme Court was the last court of appeal. Can there be a graver misfortune for a country and a nation when its citizens view the finality and the infallibility of their last court of appeal with extreme skepticism due to lingering doubts about the integrity and independence of the vanguards of their fundamental law?

The eligibility case before the Supreme Court was as much about the qualification of the Sharifs as it was about the ability of a PCO-ridden court to sit in judgment over the leaders of a political party who have vociferously criticised PCO judges for aiding and abetting unconstitutional acts. During the proceedings the judges did occasionally go into fits of pique over the refusal of the Sharifs to submit themselves before a bench dominated by PCO-judges. The angst in their observations partly manifested their awareness of the dark perception of doubt that hung over their own eligibility to preside over the matter. One of the reasons that the Lahore High Court recorded for holding Nawaz Sharif ineligible as a candidate for Parliament was that he was guilty of contempt of court due to his outbursts against PCO judges.

The lawyers representing parties that had filed appeals in support of the Sharifs had submitted an application seeking recusal of PCO judges from the Supreme Court bench hearing the appeals and for constitution of a larger bench comprising judges who had not sworn an oath under the Nov 3 PCO. Not only did the Supreme Court not decide this miscellaneous application before proceeding further with the case, they also, against ordinary judicial procedure and practice, punished the applicants for their audacity to suggest that individual members of the bench have a conflict of interest in view of the subject-matter of the appeals and slapped a fine of Rs100,000 on the applicants in their order against Nawaz Sharif.

By insisting that the bench comprising PCO judges was able to sit in judgment over someone held culpable for rancour-filled speech against PCO judges, the court decimated a cardinal rule of natural justice that no one should be judge in his own cause (nemo debet esse iudex in propria causa). Further, in the last few weeks the court continued to hear arguments of pro-Sharif lawyers on the recusal application, together with their locus standi (standing) to file appeals against the High Court order. These lawyers pedantically reiterated that they were only furnishing their arguments on the technical issues of recusal and standing and had not argued the merits of the case. The court accepted this position all along during the proceedings, yet shockingly insisted on the last date of hearing that it had heard the case on its merits and rendered a decision accordingly, while holding that all arguments had been concluded.

Lord Chief Justice Gordon Hewart of the UK had held in Ex parte McCarthy, in what has become the elementary test for a valid and unbiased judicial ruling, that, “justice should not only be done, but should manifestly and undoubtedly be seen to be done.” The larger cause for despair in observing the Sharifs’ eligibility trial was the creepy feeling that the decisions being reached in our supposed citadel of justice on Constitution Avenue are being informed not strictly by the dictates of law and equity but by extraneous factors and invidious prejudices that must be strictly consigned to the world of politics if rule of law is to promote fairness and justice.

First of all, it doesn’t matter if the perception of bias shared by those holding a grudge against PCO-judges was misconceived or unfounded. The credibility of a justice system is gauged by the perception or fairness, and not the reality, as summed up by Lord Hewart. Secondly, even if those observing the trial were being harsh in attributing questionable motives to an otherwise honourable, impartial and upright bench of the Supreme Court, the imposition of governor’s rule in Punjab as a response to their judgment entrenched the perception that the outcome of the Sharifs eligibility matter was a collaborative enterprise between the ruling elite within the executive and the judiciary.

The Lahore High Court ruling came in June 2008 at a time when fissures between the Zardari-led PPP and the PML-N were growing, but the two mainstream parties still had a working relationship. This judgment – that disqualified Nawaz Sharif but referred Shahbaz Sharif’s case to the Election Tribunal – presented a trailer of what could follow, but did not shake up the status quo or redistribute political power. The appeal against the ruling then went to the Supreme Court and the legal process kept grinding along slowly as the relationship between Zardari and the Sharifs continued to nosedive. The bench suddenly woke up to inordinate delays being caused in the matter and ordered day-to-day hearings as the lawyers’ long march approached closer and Zardari’s pressure on the Sharifs to disassociate themselves from the lawyers’ dharna mounted.

Once the PML-N unequivocally announced its decision to back the pre-Nov 3 judiciary led by Chief Justice Iftikhar Chaudhry and join the long march and dharna, the Supreme Court upheld Nawaz Sharif’s disqualification within days and decided to send Shahbaz Sharif packing as well. Can the overlap between (a) the timing of these judicial decisions and the pace and manner in which the courts conducted their hearings and (b) the ugly power games being played out in the political arena, be explained away as an innocent coincidence? Is it also an accident that throughout Pakistan’s history, judicial decisions have only entrenched status-quo forces?

We have been handed down progressive judgments by our courts emphasising the sanctity of constitutional rule and imperatives of democracy – in cases such as that of Asma Jillani – that were rendered after a dictator had passed along and was no longer on the horizon. And conversely we have been tortured by licentious judicial pronouncements – in cases such as Dosso, Nusrat Bhutto, Zafar Ali Shah and Tikka Iqbal Muhammad Khan – when the guardians of our Constitution became complicit in its decimation and those subverting the fundamental social and legal contract between the citizens and the state were still in power.

The disease that plagues our justice system is that of pragmatism. When those installed by society at the highest mantle to act as neutral arbiters while sitting in judgment over their peers reduce themselves to the enforcement arm of a corrupt coterie at the helm of the ruling elite, judicial edicts serve the wishes of the powerful and not the needs of justice. All constitutional guarantees offered to citizens and the carefully crafted system of distribution of power and checks and balances between independent pillars of the state are brought to naught by a judiciary that is incapable of functioning as an impartial guardian of rule of law. The outcome of the Sharifs’ eligibility case is not an aberration, but another manifestation of the unhealthy state of our polity where the judicial branch continues to function as an extension of the executive.

(To be concluded)

The writer is a lawyer based in Islamabad. He is a Rhodes scholar and has an LL.M from Harvard Law School. Email: sattar@post.harvard.edu