Case in Point: The SC - infallible or final?

A judge of the American Supreme Court, Robert H Jackson, famously said of his court, “We are not final because we are infallible, but we are infallible only because we are final.” Last Friday, a five-member bench of the Supreme Court disqualified the prime minister. The decision has been criticised in this and other newspapers. Some have suggested that the chief justice establish a full court to review it.

It is the right of every citizen to criticise in temperate language decisions of the courts, including the Supreme Court. Judges are human. They make mistakes. Losing parties rarely accept the fairness of decisions. When the Supreme Court first delved into this heavily politicised litigation under the stewardship of Chief Justice Jamali, it was a source of concern. The de facto political opposition was trying to knock out the elected prime minister through the courts.

Whatever the result, either Nawaz supporters or Nawaz opponents would feel that justice had not been done. The judges or judgment would be assailed by whichever side lost as not being fair and the institution would be diminished. Justice Jamali and his colleagues were guilty of poor judgment. They should not have entertained this political case under Article 184(3) of the constitution. The Supreme Court is and should remain primarily a court of final appeal.

And so it has turned out. It would seem from observations by certain analysts that five senior judges of the highest court in the land, including two future chief justices, have no idea what the law is nor are they able to deliver fair and proportionate justice. Such criticism diminishes the institution and is regrettable. You can certainly disagree with the judgment. Even with the process that was followed to arrive at it. Five other judges may have delivered a different decision. The judges are not infallible. But they are final. Can the full court or a larger bench review the judgment?

Ordinarily, review petitions are heard by the same bench which passed the original judgment. This is the long-standing practice of the Supreme Court. This practice is based on Rule 8 of Order XXVI of the Supreme Court Rules which states that, “As far as practicable the application for review shall be posted before the same bench that delivered the judgment or order sought to be reviewed”. This practice was unfortunately ignored by the Supreme Court in the Houbara Bustard case. In that case, a decision by a three-member bench was reviewed by a larger five-member Bench and set aside by a majority of 4-1. The four judges who accepted the review petition allowed the hunting of the protected bird which had been outlawed by a three-member bench. None of them had sat on the original three-member bench hearing the matter.

Any duly constituted bench of the Supreme Court (whether three member or larger) delivers final orders of the Supreme Court. If a different larger bench is allowed to review orders passed by another bench effectively a right of appeal is allowed from orders of the Supreme Court. This is undesirable in principle. As Justice Faez Isa stated in his dissenting judgment in the Houbara Bustard review, as a result “the legal certitude and the authoritativeness expected from decisions of the Supreme Court” is undermined.

If the chief justice constitutes a larger or full bench to hear any review petition filed by the prime minister, no decision of the Supreme Court will be regarded as final unless passed by the full court. It would cast an undesirable shadow on the institution and undermine its authority. In this case, it would also have the effect of undermining the authority of five honourable justices, including two future chief justices. If the five original judges are available and well, they should hear any review. If not, the original bench should be retained as far as practicable and the size of the bench should not be increased. A review is a reconsideration by those who have passed the order. Not a fresh hearing on the merits.

Review petitions should only succeed if there is an obvious error floating on the surface. Is there such an error in this case?

The reason for disqualification was failure to disclose the salary the prime minister was entitled to from his employment as an asset. Some have pointed out there was no ‘mens rea’ or intent to deceive and therefore no dishonesty. His lawyers did not dispute the existence of the employment contract. In fact, they owned it and said in spite of its terms he received no salary. He is therefore deemed to be aware of its terms. When he swore on oath that he had filed details of all his assets for the purpose of the election, his deposition was incorrect.

Is the misstatement material? It is certainly plausible to argue that failure by a public officeholder to disclose a foreign employment contract is of huge significance. It creates a potential conflict of private interest with public duty. Witness the conspiracy theory by supporters of the prime minister that he is being punished privately for the position of the government on Qatar and Yemen.

Are receivables assets of individuals? There could be differing views on this and any definition or approach adopted for tax or accounting purposes would not necessarily apply in respect of declarations by prospective public office holders. This is not a case where the payment of the receivable depended on an act by an unrelated third party. The prime minister wanted to travel freely to the UAE and signed an employment agreement to get a travel permit. He was chairman of the relevant company that was to pay him.

The Supreme Court has disqualified one individual. It has ordered that the system must continue. It is interesting that those who state we must focus on developing institutions are so alarmed at the fate of one individual. He may have got a rough deal this time. In the past he benefitted from the exercise of questionable discretion by the same court. You win some you lose some. Stalwarts of the PTI who are gloating now may meet the same fate. It is time for all of us to accept the finality of the decision and move on.

The writer is an advocate of the Supreme Court and a barrister at law.

Email: a.hosain@lma-eh.com