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Opinion

Legal Eye

Babar Sattar
February 10, 2018

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The stench of egos

The stench of egos

What is the PML-N’s “movement for justice” that Nawaz Sharif claims to have launched? It is a political manoeuvre to project the Supreme Court as a partisan institution which unfairly removed the former PM from office, which has historically shown little allegiance to defending the constitution when molested by dictators, and which is deliberately encroaching upon the executive and parliament’s domain to usurp power to create partisan consequences. Its overriding goal, as admitted by NS himself, is to seek his reinstatement in the top office.

NS is seeking to drum up public support to secure an overwhelming majority in parliament to be able to amend the constitution. While he mainly seeks to erase his own disqualification, he alludes to foundational principles underlying our constitution, and their caricatures: representative democracy vs controlled democracy; separation of powers vs guardian judiciary; rule of law vs rule of judges; due process vs arbitrary penalties. Notwithstanding invocation of sound principles, the object is clear: to win at the polls what he lost in court.

There is nothing in the PML-N’s history to suggest it is serious about reforming the justice system or strengthening the constitutional principles it is relying upon today. NS added Article 63A to the constitution through the 14th Amendment that enabled party heads to hold the vote and conscience of party legislators hostage. He piloted the 21st Amendment that led to the creation of military courts and decimated principles such as separation of powers and due process. He cheered a guardian judiciary when CJ Iftikhar Chaudhry was breathing down the PPP’s neck.

The PTI hasn’t ousted NS from power, the SC has. So long as the SC retains its credibility as a neutral arbiter of the law, NS can’t claim that he has been wronged. But if the SC can be painted a stakeholder in the dogfight between political rivals, it loses its allure of neutrality and finality, and NS has a case to make to his support base and neutral bystanders. My friend Mosharraf Zaidi is right when he argues that NS has lured the SC into a fight and by taking him on, whether driven by pride, pique or misconceived valour, the court has landed exactly where NS wanted it.

Politics is a dirty no-holds-barred business even in civilised democracies. Rival politicians sling mud at one another as a matter of routine. But justice is meant to be unsullied. Politicos can wallow in controversy. Judges can’t. Hence the codes of conduct requiring judges to be reclusive, to speak through judgments, to not wade into the political thicket etc. Can judges respond to provocative rabble-rousers by shouting back from the bench? George Bernard Shaw is supposed to have once counselled against such practice.

This isn’t meant to denigrate politicos, but to identify a key characteristic that distinguishes political theatre and a court of law. NS may have no intention of amending the constitution to seek the judiciary’s reform. He would know that while upholding the 21st Amendment, the SC gave itself the power to veto a constitutional amendment. Further, the judiciary’s reverence flows from the public’s conflation of the court and the constitution. As US Chief Justice Hughes had quipped: “We are under a constitution. But the constitution is what the judges say it is.”

Democracy and rule of law are complementary and not competing values. They lie at the foundation of constitutionalism. But when pitted against one another, democracy, rule of law and constitutionalism all suffer. When the SC directed the PPP government to write to the Swiss authorities to seek the reopening of investigation against Asif Zardari post-NRO verdict, the loudest advocates of rule of law today (whether still in the PPP or having migrated to the PTI) warned that the SC was pitting rule of law against democracy. NS was in the pro rule of law camp at the time.

In 2013, IK charged the SC and CJ Chaudhry with electoral rigging and projected judges as part of a plan to steal elections and hurt democracy. An SC commission led by CJ Nasirul Mulk concluded, after lengthy hearings, that there was no evidence of a scheme to steal the election. But the PTI support base still believes the rigging theory. Post-Panama, having found himself on the wrong side of the SC, it is now NS who is making the democracy vs rule of law argument. And his political foes, previously chiding the SC, are now swearing by it. This is how politics rolls.

But no matter how popular, revered, media-savvy or contempt law trigger-happy the SC might be, its ability to engage with politicos on their turf is inherently limited. During the Swiss letter saga, much was said by the PPP from the bully pulpit. But the SC remained focused on getting its orders implemented. It was PM Gilani’s refusal to write the letter that caused his disqualification after a full-fledged trial. Many wanted the SC to find ways to remove (then) president Zardari from office. It didn’t indulge. Zardari completed his term and the Swiss letter engineered no political results.

The SC issued a contempt notice to Altaf Hussain for dire threats hurled at judges and one to IK for scandalous rigging allegations. In both instances the purpose was to deter and not punish, and the SC created room to discharge notices upon expression of regret. During the PTI-PAT dharna, Constitution Avenue was under occupation. Lawyers driving to the SC were security checked by PTI-PAT volunteers, judges had to take detours to reach the SC and much abuse emanated from atop containers. But no contempt notices were issued to irreverent and abusive politicos.

During the great depression, US President Roosevelt’s New Deal legislation continued to be stuck down by a conservative Supreme Court. In 1936, after he got re-elected in a landslide, he sought to alter the court’s composition through a bill that came to be known as the ‘Court-Packing Plan’. Roosevelt emphasised in a public address the necessity of taking “action to save the constitution from the court, and the court from itself.” While the plan resonated with the public initially, it soon lost steam, attracted bi-partisan opposition and never became law.

However, in 1937, while the Court-Packing Plan was being considered, Justice Owen Roberts, who as part of a 5-4 majority had been striking down New Deal laws, switched to the side of judges considered pro-New Deal (and proponents of legal realism) that led to laws being upheld in a 5-4 split. Historians contest whether this had anything to with the political pressure mounted by Roosevelt, and argue that the Court-Packing Plan didn’t work due to public and political opposition across the aisle. But Robert’s swing became popular as “the switch in time that saved nine.”

Our SC judged NS, found him wanting and so he stands disqualified. While the merit of the judgment will and can be debated and critiqued, the order has been enforced. It is NS who now needs to project the SC as an adversary and a partisan chamber to keep his political career alive and convince the electorate that his dismissal was unjust. But why should the SC breathe fire into this controversy? Why should it employ the archaic and much-abused contempt law to deter criticism? Does tongue-lashing in court raise the SC’s stature or serve rule of law?

Pakistan is a vulnerable democracy where allegiance to rule of law is skin deep. The constitution, as a living document, will continue to evolve, be interpreted and reinterpreted amidst legitimate difference of legal opinion. But for the constitution to serve the evolving needs of its citizens, we need a court whose credibility as a neutral arbiter of law is unimpeachable and leaders across institutions with the ability to rise above personal egos and ambition to focus on the distance that remains to be covered.

NS’s harangue against the SC is despicable, just like IK’s tirade a couple of years back and Zardari’s sneering before that. The question is: will the SC rise above political bickering or stoop down to settle scores?

The writer is a lawyer based in Islamabad.

Email: [email protected]

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