Legal eye: Shortcuts as salvation

We are a nation addicted to soap operas. Beyond the urge to produce immediate political consequences, there has been scant conversation about how the Panama scandal has exposed what is broken in our polity and the need to fix it (I A Rehman’s incisive piece reflecting on Panama lessons being an exception). Our politics has become so divisive and polarised that it has swallowed the space to take qualified positions on matters that are not black and white. And partisan media is fuelling this culture of abuse that is crowding out logical reasoning.

The Panama scandal has revealed that there exists no consensus in Pakistan around organising principles – ie democracy, rule of law and accountability. The PM’s coterie claims that Panama is about cutting to size an elected PM who is popular, and is thus an attack on democracy. His opponents argue that if continuity of the political process is going to entrench the conflicted and corrupt Sharifs, we are better off without such democracy. If democracy brings another five years for the Sharifs should we throw our hands up and say enough?

The PTI asserts that Panama is about rule of law and holding the mighty to account, without which democracy is neither meaningful nor sustainable. The PML-N alleges that there is no due process or rule of law at play here and what we are witnessing is a witch-hunt to dismantle the Sharif’s support base under the garb of accountability to doctor Election 2018. If rule of law and accountability mean that popular leaders are going to get thrown out of the electoral ring (or behind bars) for their misdeeds, are we going to demonise rule of law?

The judges of the apex court have expressed displeasure over the simultaneous court and media trial of the Panama matter. But they have also declared more than once that the media doesn’t sway them. In today’s information age, the antiquated doctrine of sub judice can surely not stand. But what is the new balance that must be struck between demands of freedom of speech and the requirement that judicial process not be influenced by extraneous considerations ie public opinion?

Each player in this game is trying its utmost to influence the outcome of the Panama case. Are judges unlike ordinary mortals and remain unaffected by dominant public narratives around them? When political players and the media continue to impute motives and sit in judgment over the virtue and integrity of everyone involved with the Panama matter, including judges, can judges stay detached from flattering or scathing commentary while discharging their duties? Shouldn’t the SC determine the scope of the sub-judice doctrine, as it stands today, and the mode of its own interaction with the media?

When the split Panama ruling came out, many projected the minority opinions as heroic and the majority verdict as offering a lease of life to the Sharifs. Those who opposed the JIT opposed it for they wished to see Nawaz Sharif removed immediately. When the JIT report indicted the Sharifs, many proclaimed it as heroic. They now wish the SC to accept the JIT findings as gospel and immediately remove NS as PM. The suggestion that a trial might be needed to ascertain the truth of the JIT findings is dismissed as another devise to save NS.

The legal proposition here is simple. If the facts being presented to the SC in making a case for PM’s disqualification are contested, can the apex court determine their truth and veracity without a trial? Can the apex court conduct a trial in exercise of its original Article 184(3) jurisdiction? If not, should it kick out an elected PM on the basis of a tentative assessment of materials before it? Do we wish individual judges of high courts to have the power to issue writs of quo warranto summarily dismissing prime ministers?

One of the functions of the SC is to declare what the law is and set out judicially enforceable standards that create legal certainty and enable subordinate courts to apply the law so laid out by the apex court. Why is it that the scope of Article 184(3) then depends on the person of the incumbent chief justice and there exist neither any rules nor a comprehensive SC ruling that defines the SC’s 184(3) jurisdiction? Will the SC (and high courts) from here on issue writs disqualifying parliamentarians under Articles 62/63 for making conflicting public statements?

Can fundamental questions involving the meaning of our constitution and balance of power between pillars of our state be ignored? We have no patience to ponder over them and the consequences of how they are answered, for the burning sentiment of the day craves immediate lynching. Will the ouster of NS usher in a new age of transparency and accountability in Pakistan? Will it fix the institutional paralysis and the failure of checks and balances that has produced the Panama scandal as well as the present gridlock in the first place?

If the Panama case had to be taken up by the SC and a special JIT under the apex court’s supervision had to be set up because all state institutions under the executive’s control have been co-opted and corrupted and can’t hold the ruling elite to account, how will throwing NS out alone fix that? If the prime argument against an accountability trial is that the ruling family will game the system, does it mean that accountability in Pakistan will remain personalised (not institutionalised) and will happen only if the SC takes direct cognizance of a matter?

Notwithstanding that the JIT findings are being contested by the Sharifs, one thing is certain in view of the contradictions and opacity that mar the Sharif narrative: the allegations against the Sharifs have never been diligently and professionally investigated, prosecuted or judged over the last few decades. Other than the Sharifs if the Panama episode has exposed something, it is the spuriousness of almost all components of our criminal justice system and their inability to dispense justice in ordinary course.

Today everyone is aghast that the SECP chairman asked subordinates to backdate a note to document that an inquiry against Chaudhry Sugar Mills was closed at the time it was in fact closed. Why didn’t senior SECP executives refuse? In 2011, Ashraf Tiwana, head of the SECP’s legal department, was terminated without cause. The HR handbook said the SECP could do so on payment of three-month salary. Tiwana petitioned the SC, which, in 2013, highlighted the imperative of regulatory autonomy and declared termination simpliciter to be unconstitutional.

Tiwana then filed a petition for reinstatement before the Islamabad High Court. (Disclosure: Tiwana is a dear friend and I represent him before the IHC). It is now 2017. Tiwana remains out of his job since 2011. The matter of his reinstatement, despite a comprehensive SC judgment, hangs in a balance. The SECP insists that its employees are its servants (translation: they can be chucked out at will). Tiwana has been made an example by our system. Why should anyone in the SECP, NAB, FBR, or elsewhere in public service in his right mind cross those in power?

Panama hasn’t just exposed the Sharifs for owning assets they can’t explain. Pick anyone from the elite, place them under a microscope and the outcome will be identical. This doesn’t mean penal consequences mustn’t flow toward the Sharifs. They must be prosecuted and punished if found guilty by a trial court. But we must put a stop to this business of exceptionalism. It is due to the logic of expediency that exceptionalism and personalism have come to define the culture of our institutions, where only the ends remain in sight and all means fair and foul are kosher.

Once this melodrama ends, let’s not go about celebrating false dawns. Every bit about Panama is screaming out that our institutions are dysfunctional and their credibility is in tatters. And yet in our state of excitement we are unable to look at the big picture.

Email: sattar@post.harvard.edu

The writer is a lawyer based in Islamabad.