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Legal Eye

July 14, 2019

Dignity of justice?


July 14, 2019

A week ago, the PML-N made damning allegations (backed by audio-video material) about how certain convictions were procured from and delivered by accountability Judge Arshad Malik against Nawaz Sharif.

The allegations, if true, expose how witch-hunts continue in the name of accountability and justice – and, if untrue, scandalizes our justice system. But what has come to pass so far in the matter – be it the angry reaction from the government or the nonchalance elsewhere regarding the allegations and their import – doesn’t reaffirm faith in the integrity of our justice and accountability system.

What is at stake is faith in the judiciary’s ability to take a break from the past and be a truly independent pillar of our polity. At stake is the belief that judges while adorning their robes are cognizant that they are endowed with God’s work and are God-fearing, as their code demands, and can’t be coerced or cajoled into delivering verdicts that do anything other than dispense justice in accordance with the law. At stake is credence of the theory that citizens’ fundamental rights (including the right to due process) are inalienable and the judiciary is their guardian.

The history of executive power here is mostly a history of trying to monopolize it. It is the judiciary, as is customary in rule-of-law polities, that is the designated check on power and its abuse. The separation of the power of judging from the state’s executive and police powers is a salient feature of our constitution. It is meant to create a level-playing field between an all-powerful state and dependent citizens. If the scheme is working is the question.

From the initial rejection of the Panama petition to its mysterious revival, from a five-member bench delivering judgment to a three-member implementation bench running a JIT to the return of a five-member bench to deliver the ‘final’ judgment, from the SC stepping in NAB’s shoes to order the filing of references against NS to the SC assuming supervisory control of the accountability court by nominating a monitoring judge and overseeing trial court proceedings, the whole episode has been curious to say the least.

This is no occasion to chronicle the ‘extraordinariness’ of the Supreme Court’s Panama verdict. But it is relevant because the saga continues and the footprint of the state’s influence keeps appearing where it ought not. The judiciousness of a court ruling is never gauged by transient emotions of the day that can be provoked and excited. The wisdom and fairness of rulings in hard cases (ie politically important) and of those who deliver them is judged once the excitement settles down. Let’s leave Panama for history to judge.

For many who were neither affiliated with the PML-N nor held any brief for NS, the Panama episode was extraordinary in how little interest was shown in Article 10A and constitutionally guaranteed due process and fair trial. For most with partisan affiliations, this is legalese. But for lawyers, how constitutional rights are shaped and actualized by the SC (which then defines and negotiates the relationship between citizen and state) is far more important than the fate of one man or one party. For now, Article 10A is dead in the water.

Even before Article 10A was written into the constitution by the 18thAmendment, the courts had incorporated principles of natural justice into all laws. Natural justice traditionally refers to: (i) the right to be heard (fair trial); (ii) to be heard by a neutral arbiter who is not a judge in his own cause or conflicted (independent judiciary); and (iii) judged through a reasoned order (backed by law and facts). Justice systems cannot disregard these fundamental requirements because the state and those who agree zealously with it believe that the accused’s guilt is ‘obvious’.

There are obvious ramifications of extinguishing the distinction between an accused and a convict. What do we need defence attorneys for? Their job is to vigorously defend clients against vigorous prosecution by the state. And justice is a product of the balance struck by this vigour on both sides.

But if the state could declare an accused guilty (with many in the media cheering on) and denude him of fundamental freedoms and liberty, there would be no need for an independent judiciary and we would be working with an entirely different concept of law. We would be saying we don’t need independent judges as checks on abuse of power because we blindly trust the state. In that case, all we would need is adjudicators (akin to arbitrators) to resolve civil disputes between citizens. If that is what we want, doesn’t all this paraphernalia become redundant? It is our state structure and the compact between the citizen and the state that underlies concerns regarding Judge Arshad Malik. And in this debate where the state is on one side flexing its muscles and the citizen on the other standing aghast, the judiciary is largely silent.

If the PML-N has evidence that the judge was biased and gave a predetermined ruling on being blackmailed, it is for the PML-N and NS to plead those facts in appeal and have the ruling annulled. But there are at least four sets of responsibilities the judiciary is obliged to discharge here other than that of being the appellate authority sitting in judgment over Arshad Malik’s judgment against NS.

First, the judiciary has supervisory jurisdiction. Article 175 says that the judiciary is independent of the executive and we have umpteen rulings drumming in how our democracy hinges upon judicial independence (accompanied in one case even with the threat to strike down the 18th Amendment if parliament refused to give judges control over judicial appointments). Article 203 says that high courts supervise all courts subordinate to them. It is a settled law that accountability courts are courts subordinate to the high courts in respective provinces.

The Islamabad High Court, under our constitution, had supervisory control of Judge Arshad Malik’s court. The IHC has indeed instructed the law ministry to remove Judge Malik but has it also conducted an inquiry to ascertain the facts surrounding this damning public scandal involving allegations that the judgment was doctored and the presiding judge was blackmailed? Given the coercion and blackmail of judges in the past being a documented historical fact, simply removing the judge caught in the crosswind might be insufficient.

Second, high courts have disciplinary control over subordinate judiciary. Given that Judge Arshad Malik has neither denied meeting the PML-N aide nor said that the person who features in the video is not him (he says his words have been presented out-of-context), he is either being coerced or he misconducted himself or both. He breached the judicial code of conduct issued by the IHC (and the LHC, which is relevant as the judge is on deputation from Punjab) when he secretly met with one party to discuss the merits of his judgment during appeal, which is a continuation of trial.

Third, this episode brings into question the SC’s 184(3) jurisdiction. For the first time in history the SC had taken continuing mandamus of proceedings pending before a subordinate court (which otherwise in view of Article 203 fell within the IHC’s supervisory domain), by appointing a sitting SC judge as a monitor. Leaving aside Article 10A concerns regarding rights of the accused against whom the SC (and the supervising judge) had already passed judgment, this episode suggests the monitoring wasn’t very effective either way.

And finally, and foremost, is the apex court’s role as guardian of the constitution and fundamental rights and its obligation to ensure that justice is not only done but also seen to be done. We have a former CJP on record acknowledging how the Bhutto verdict was procured. We have accounts of how judges were blackmailed into joining the PCO SC post-Nov 3, 2007; it is possible to cite more recent instances as well.

As the judiciary seems to have been hung out to dry, the ruling regime has willed that the accused in Pakistan no longer have freedom of expression. The constitution doesn’t say so and parliament has made no law to fetter the freedom of speech of an accused (or even a convict). But this is the latest edict and, pursuant to it, three TV channels were taken off air for acting in breach.

We are in a phase of contraction of civil liberties where oxygen seems to have been sucked out of fundamental liberties. Is this the new normal?

The writer is a lawyer based in Islamabad.

Email: [email protected]