The fog of law

Legal eye

The proceedings in the Panama case have thankfully concluded and the Supreme Court has reserved judgement. The Sharifs have not exactly come out rosy: a first family that cannot afford to be candid about its assets and the means that justify their acquisition, and needs to hide behind technical defences and legal devices to hold up the tale they have conjured up. Their conduct and defences during the proceedings have themselves injured the Sharifs. Whether or not the injury is mortal will depend on the judgement.

Notwithstanding the outcome and whether or not the PM will survive Panama, the jurisprudential issue flagged by this case is the absolute uncertainty that surrounds the scope of our Supreme Court’s power under Article 184(3). Rule of law is attractive because it ensures certainty. The rules of the game are public and are independent of the whims of individuals. People know in advance what rules to live by and the rights, remedies and penalties that flow from a breach, how such breach is to be established and who needs to do the establishing.

Pakistan waits for the outcome of the Panama case with bated breath because even complete knowledge of facts presented by parties and diligent research of case law don’t equip a reasonable person with the tools to make an informed forecast of the likely outcome. There is an element of judgement involved in each case. But in a rule of law society, when a prospective petitioner consults a lawyer regarding a grievance, the lawyer is able to render reasoned opinion on whether a legal injury has been caused and if so the forum to seek redress from.

In this particular case, anything could happen. Why no one can form an informed opinion about the likely outcome is because no guiding principles have been laid down with any certainty explaining the scope of Article 184(3) powers of the SC. During the Iftikhar Chaudhry days, we saw the 184(3) pendulum swing to one extreme. All eyes would remain on the apex court’s exercise of 184(3) powers and the ‘breaking news’ cycle surrounding it. Whatever the ill, its cognizance by the SC was deemed to be the ultimate remedy.

The ultimate justification of this top-heavy cathartic exercise of judicial authority was necessity. The argument is this: in a country where law-enforcement agencies are captured by predatory elites, where individuals are more powerful than institutions and where dysfunction of the state has created a governance crisis, someone must step up to fill the vacuum and look out for hapless citizens. While traditionally that someone has been the army, in the post-2009 phase it was the “people’s” SC using Article 184(3) as its whip to keep the government in check.

There were a few other things that happened during that suo-motu happy phase. There was a growth of angst against the government and the institutions it controls. NAB remained in the line of fire for the most part. In 2011, the SC asked then chairman NAB Justice Deedar Shah to pack up. In 2013, it ordered the removal of Admiral Fasih Bokhari. In those days, the SC took cognizance of innumerable corruption scandals amid media trials. The court pulled the ears of the FIA as a routine matter. It constituted special commissions to conduct investigations under its scrutiny.

When the court threw out the NRO in 2009, we celebrated that as the dawn of a new corruption-free Pakistan. When PM Yousaf Raza Gilani refused to write a letter to Swiss authorities to reopen corruption investigations against Asif Zardari and the SC convicted him for contempt, we celebrated that as the beginning of a new era where the mighty had to yield to the law. When the SC decided the Asghar Khan case, we declared that rule of law had finally been entrenched and generals and politicos would all need to account for their dirty dealings without distinction.

Looking back, what gains did the Iftikhar Chaudhry-led SC make that were sustained? How many politicos charged with corruption in judicial and media trials simultaneously have been convicted since? Did the dismissal of NAB chiefs or chiding commentary about how rotten NAB and FIA were transform these bodies into corruption busters? Did the SC’s exercise of direct control over investigations (including appointment of handpicked investigators) lead to spectacular successes? Other than raising the public profile of the SC and its chief, did the exercise of 184(3) powers make any lasting contribution?

After the activism fatigue caused during Iftikhar Chaudhry’s term, the pendulum swung in the other direction. One didn’t hear of Article 184(3) much. For a while, the SC functioned largely as the final appellate court. The heyday of court reporters became a thing of the past. Does Panama, together with the SC’s frequent exercise of suo motu in public interest issues, mark the swinging back of the pendulum? And if so, is this not an opportune time to lay down the precise scope of the SC’s powers under Article 184(3) and the manner of their exercise?

Do Article 184(3) powers vest in the SC, a bench of the SC or the chief justice? In Mustafa Impex, the SC has held that the constitution defines the federal government to mean the cabinet and not just the PM (and in doing so has explained by way of example that, similarly, the Supreme Court means the chief justice and judges of the Supreme Court). So where the original jurisdiction under Article 184(3) is vested in the Supreme Court, can the CJ or a bench of the SC exercise such power as opposed to the entire court?

Are we evolving new jurisprudence where the due process guarantees (elevated to the constitutional plane through Article 10A introduced by 18th Amendment) need to be watered down to serve the needs ‘extraordinary’ times? The challenge to the 21st Amendment was dismissed by the SC. This was done not on the basis that the court didn’t possess authority to suspend a part of the constitution but on the basis that trial of civilians by military courts didn’t militate against rights of citizens or the system of separation of powers envisaged by our constitution.

Will dilution of due process rights be carried further with the SC holding that it can switch between adversarial and inquisitorial modes of adjudication at will under Article 184(3), depending on the subject matter of the case and identity of persons involved? If the agencies responsible for investigation (that fall within the executive’s domain) are beholden to power elites that control the executive – making the accountability of such elites impossible – is switching to inquisitorial mode in such cases the only solution in the face of the system’s invidiousness?

If the SC’s logic of transforming itself into a court of first instance and going inquisitorial is that no lesser judicial forum can dispense justice as it might be overawed by power elites, it is an admission of institutional failure or collapse. If the court system isn’t working for ordinary people at the grassroots level, no matter how valiant and untiring the ‘do-good’ commitment of 17 judges in the SC, they can’t ‘save’ the common man. Spectacular rulings every now and then have their effect and utility, but are no substitute for painstaking institutional reform.

The SC’s frustration in dealing with NAB is a lesser version of what ordinary folks feel in their interface with the justice system every day. The SC can’t look away when wrongdoing is brought to its knowledge, and it must not wait for all components of the justice system to be fixed before beginning to dispense justice. But a momentary flash in which law prevails against the mighty and makes pretty headlines is not the measure of the triumph of ‘rule of law’ and its certainty. The SC must respond to the immediate, but not as a substitute to what is sustainable.

The writer is a lawyer based in Islamabad.

Email: sattar@post.harvard.edu