Legal eye: Hard cases, bad law

Oliver Wendell Holmes, Jr of US Supreme Court observed in 1904 that, “great cases like hard cases make bad law. For great cases are called great, not by reason of their importance... but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment.” The Panama review judgment proves the point.

From a larger perspective the biggest casualty in the Panama affair is not Nawaz Sharif. Many have already noted that a succession war within the PML-N was only a matter of time; Panama accelerated it. NS has been in public life for over 32 years now. He has no great ideas in store at the ripe old age of 68 that might change the fate of Pakistan. What NS hasn’t accomplished so far, he is unlikely to accomplish in the twilight zone. Our politics would benefit from fresh air and new ideas.

The biggest casualty of Panama might be public faith (across the political spectrum) in the SC’s ability to act as a neutral arbiter of the law. There was a dream that this SC, comprising some of the smartest legal minds with decades of adjudicatory experience between them, would be the pinnacle of jurisprudential excellence. And having persevered through Musharraf’s PCO, they would cement the SC’s stature as the supreme adjudicator above internecine institutional conflicts and intrigues. The dream remains.

The review judgment is problematic for many reasons: it omits addressing foundational problems with the Panama judgment; the reasons in justification of the cause of disqualification lack intellectual rigor; it jumbles together cases of different respondents as if they are one and the same; it misapplies precedent; it declares NS guilty of dishonesty not for having assets beyond means by giving a tortured interpretation to the term “asset”; it insists that the trial court is free to ignore its strictures; and it reflects that the SC might suffer from a saviour complex.

Forget WhatsApp calls to handpick civilian members of the JIT or inclusion of the ISI and MI in the JIT, the review judgment doesn’t even explain the three versus five-member bench conundrum. It is inexplicable how a bench at least two of whose members issued final verdicts of disqualification in the first round before it was dissolved, and who never sat and considered the JIT report or arguments of parties in relation to it came back to life to sign the final judgment.

Why was it even necessary when the three judges comprising the new bench had disqualified NS unanimously after considering the JIT report? In the event that composition of the benches was in accordance with the initial Panama judgment and provisions of SC Rules and CPC, why couldn’t the SC explain the same in this review or interpret the law surrounding the concept of orders, interim orders and final judgment to lay the controversy to rest?

The SC’s reasoning on the actual ground of disqualification (ie non-declaration of entitlement to salary not received) is truly astounding. The court holds that, “there is nothing in oral or written form, from July 2006 to January 2013 as could stop the accrual and accumulation of salary or prevent it from becoming an asset.” And then goes on to observe that, “granted, it ceased to be an asset of the petitioner from January 2013 but it remained an asset till then and more so on 30th June, 2012, which is the crucial date in terms of Section 12(2)(f) of ROPA.”

Could non-receipt of money be a factor preventing entitlement to a receivable from being transformed into an asset, given that the SC notes itself that the ‘asset’ automatically disappeared into thin air in January 2013? Thus, the SC dismissed a PM for being dishonest on a hyper-technicality: for admitting that he was entitled to a salary back in June 2012 that he refused to take. By declaring an unutilised entitlement an ‘asset’, it concluded that its non-declaration was not just an omission but deliberate concealment and dishonesty attracting Article 62(1)(f).

It was this ‘heinous’ crime that then led the SC to observe that, “much higher level of integrity is expected of the holder of the highest elected office of the country. But to our dismay and disappointment the petitioner has not been fair and forthright in answering any of the queries made during the course of hearing. He never came forth with the whole truth. He tried to fool the people inside and outside the parliament. He even tried to fool the court without realising that, ‘you can fool all the people some of the time, some of the people all of the time but you cannot fool all the people all the time’”.

“Resignation rather than prevarication in ambiguous terms is more honourable exit if and when anything secretly carried under the sanctimonious gown of leadership drops and gets sighted. Since the prime minister of the country is thought to be the ethos personified of the nation he represents at national and international level, denying an asset established or defending a trust deed written in 2006 in a font becoming commercial in 2007 is below his dignity and [the] decorum of the office he holds.”

This could qualify as political-speak or a moral lecture, but what law is being laid down here? If NS were disqualified for perjury, strictures might make contextual sense. But he wasn’t. He is being chided for defending a fake trust deed he didn’t defend (that was his children’s case not his). Is the court bending his ear for not declaring an undrawn salary or for not admitting ownership of the London flats, which the judges seem to suspect he owns (but which is to be determined in trial)?

The SC held in Panama for the first that definition of salary (as amount received) in our Income Tax Ordinance is irrelevant for purposes of ROPA and that the dictionary suggestion that an ‘asset’ can include a receivable will be applicable. But goes on to hold that NS ought to have known about this “simple principle of accounting” as he “has been neck deep in business and politics ever since the early 80s”. Is it saying that longevity in politics should have conjured the ability to predict how the SC might impose an extraordinary interpretation on the term “asset”?

The SC then states that it hasn’t usurped the authority of NAB or the trial court as both “have been left on their own to proceed in accordance with law.” Yet the review judgment starts with the final order that directs NAB to do such and such as opposed to exercising discretion in accordance with law. The SC says the trial court can ignore its observations when it is settled law that even obiter comments of the SC are binding on lower courts? Can a trial court ignore that the SC has all but declared that NS owns assets beyond means, that he tried to fool everyone and that he should have resigned when caught with his pants down?

The SC says the practice of superintending proceedings of the accountability court “has been in vogue since long”, but doesn’t point to any such precedent. It doesn’t lay any legal test for which cases require such supervision. On the one hand, it says that there is nothing extraordinary about appointing a supervisory judge and on the other justifies the same on the basis of institutional capture of NAB, SECP, FBR, State Bank, National Bank and IB by the incumbent political elite. But doesn’t identify the materials or reasoning that led to such an overarching conclusion.

The review judgment reads like an angry response to NS’s GT Road harangue and not a dispassionate judicial order. It produces more questions than answers: what are the limits of the SC’s inquisitorial proceedings? Do media trials affect court trials? Is the SC a court of law or of morality? Does it perceive itself as the ‘saviour’ required to prevent what it calls “catastrophe in politics”, which according to it “is already touching the extreme”? Does legal reasoning lead to judgment or are reasons crafted to justify prior conclusions? In ousting NS has the SC used up a lot of its own credibility?

The writer is a lawyer based in Islamabad.

Email: sattar@post.harvard.edu