Legal eye: Crisis of expectations

The Supreme Court heard and dismissed the Sharif review petitions. Given the narrow scope of review, nothing dramatic was expected in terms of outcome.

Litigation produces winners and losers. In this case, the Sharifs lost. The outcome threatens to eclipse Nawaz Sharif’s (NS) political fortunes. The PML-N’s critique of the ruling is thus expected. Regardless of political consequences, how the case was conducted and the apprehensions regarding its jurisprudential impact have put the apex court itself on trial. This review was an opportunity for the apex court to address lurking concerns that go to the root of our justice system and what judges do.

Does the SC believe that due process is expendable? The Panama ruling doesn’t dwell on the scope of Article 10-A (constitutional right to fair trial), added through the 18th Amendment, and how it is to be read in relation to exercise of Article 184(3) powers by the SC (ie when the SC exercises original jurisdiction). There is a prior SC judgment (that justified throwing out PCO judges without trial) that remains a blotch on the entrenched principle of natural justice. And now the SC has tossed out a prime minister without trial in a matter that involved disputed facts.

The question of due process is linked to the system of separation of powers (horizontal and vertical). Does the SC believe that in appropriate circumstances the constitutional scheme of separation of powers can be disregarded? If so, what is the objective test to be applied before the SC or a high court elects to disregard such scheme? It is settled law that while exercising judicial review powers our courts only interfere with orders that are illegal, irrational or procedurally improper. However, they can’t step into the shoes of the executive or second-guess its decisions on the basis on their own subjective preferences.

In Panama, the SC didn’t set aside NAB decisions for being illegal nor did it direct NAB to reconsider a matter in accordance with the law. It simply speculated that NAB was in the ruling regime’s capture and could not be trusted with exercise of its statutory authority. Based on such opinion, it arrogated to itself the authority vested in NAB under the NAB Ordinance and directed NAB to file references against NS, his children and Ishaq Dar. The legal question is: what test has the apex court prescribed which is to be followed before courts declare a state authority dysfunctional and seize and exercise its functions directly?

The SC didn’t just assign to itself, and exercise, state authority falling in the executive’s domain but was equally tenacious toward vertical separation of powers within the judicature. By appointing a monitoring judge to oversee the trials it ordered, the apex court has essentially held that, like NAB, it can’t even trust the accountability court and will baby-sit it. Three obvious questions spring to mind.

One, if NAB and the accountability courts are dysfunctional and/or amenable to influence, will the SC monitor all accountability trials (or, at least, those involving power elites) in line with the principle of equality and equal protection before law?

Two, when our constitution doesn’t structure the judicature as a unitary institution, where does the SC’s direct supervision of the trial court leave the high court that exercises administrative control over the accountability court? Isn’t such supervision usurpation of the high court’s powers?

And three, what will be the fate of any appeal against the accountability court judgment in a case monitored by the SC? Will a high court dare to set aside a conviction in such case? Will the SC sit in judgment as final court of appeal against the ruling in a case instituted on its instruction and monitored by it all along?

Does the SC believe that it is ordained to be the saviour of a system that is corrupt and ineffectual and thus needs to bypass principles and procedures set for ordinary times? Isn’t this the ‘doctrine of expediency’ that the SC had buried in the PCO judges case when it emphasised that all authority flows solely from the constitution and law (‘doctrine of enumerated powers’)? If rule of law is a check against arbitrariness, can it countenance decisions given in disregard of due process when the highest court finds it fit to do so in ‘extraordinary’ circumstances?

Can an expert legal mind say with certitude what precedent the Panama case has set to be followed in subsequent cases? Isn’t the primary function of the apex court to settle the meaning of law to ensure legal certainty? The ordinary public is critical of the excruciatingly formal system of rules and procedures that control our court system. The response to such criticism is that rules and procedures ensure just means to reach just ends and balance competing rights of citizens and state. Panama seems to suggest that desirable ends can also be self-justificatory. Is the SC sawing off the branch that our formal justice system hangs by?

Does the SC supervise a system that produces justice in accordance with prescribed law or one wherein the notion of justice is guided by the morality of individual judges adjudicating cases? In a common law system, judicial reasoning is key. Such reasoning sets out what the law is and how principles are to be applied to similar cases. Unfortunately, the reasoning in Panama is feeble. The case has been understood and defended (by those celebrating it), as one that on paper disqualifies NS on a technicality, but the unstated reason is the judges’ sense that NS has dirty money.

This sense gathers strength from the initial review hearing where an honourable SC judge stated that the reasoning given in Panama is only the tip of the iceberg. As a legal matter, should the highest court pass a ruling that doesn’t contain the real reasons why someone has been punished? How does one challenge or understand a decision when real reasons aren’t stated? Do our courts not set aside executive decisions in routine if reasons aren’t provided or if the reasons provided don’t justify decisions? Are we turning a page in history where judicial intuition will be deemed sufficient justification for a decision?

What considerations/information does the SC consider extraneous? Are decisions to be based on the material on file or can information informally provided by intelligence agencies also be considered? Nomination of ISI and MI reps on the JIT and the subsequent Whatsapp calls scandal (never clarified by the SC) raised concerns about nature of interaction between judges and spooks. It is unclear on whose instruction agencies would begin screening officials of the SECP, State Bank, NAB and FIA for the JIT even before the implementation bench was formed.

Are judges accessible to – and can they interact with – agencies outside court? In an adversarial litigation system, can judges seek information from agencies behind closed doors? The faintest hint that the judiciary and intelligence agencies might have coalesced to promote ‘national interest’ is disconcerting for it brings to mind the sordid history of this institution when it functioned as an extension of the establishment and rendered decisions that were neither fair nor just and hurt both democracy and constitutionalism in Pakistan.

Is public opinion an extraneous consideration? Why do judges repeatedly assert that they are not influenced by it and yet their commentary in court suggests that are fully aware of public opinion, which gets under their skin too? There was a time when the judicial code of conduct required judges to remain secluded. Doctrines such as sub-judice were designed to ensure that judges remain impartial and oblivious to societal emotions. In the age of pervasive electronic, social media and Whatsapp groups, how does one ensure judicial impartiality and obliviousness?

In a cocoon, the SC might believe it is our new saviour. But outside the world that will lionise anything that hurts the incumbent regime, rule of law proponents are wondering if the apex court is even aware that its conduct and decisions are raising questions about its impartiality, capability and quality of jurisprudence. To quote Justice’s Khosa’s acclaimed version of Kahlil Gibran: ‘Pity the nation that clamours for equality before law, but has selective justice close to its heart.’

The writer is a lawyer based in Islamabad.

Email: sattar@post.harvard.edu