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Legal Eye

August 6, 2011

Our hornet’s nest

Opinion

August 6, 2011

The writer is a lawyer based in Islamabad.
Jonathan Swift quipped in A Critical Essay Upon the Faculties of Mind that “laws are like cobwebs, which may catch small flies, but let wasps and hornets break through.” He made this cynical observation a few centuries back, but he might as well have been describing Pakistan’s justice system. However loathsome one might find what the ruling regime’s legal vultures are doing to frustrate due administration of justice in this country, the system is working. High-profile cases implicating the mighty have continued to make headlines since the restoration of our independent-minded judiciary back in March 2009. And yet, despite all the anxiety, drama and media excitement surrounding the NRO implementation case, the NICL and Haj scandals, or the matter of the NAB chairman’s appointment, legal processes somehow continue to grind along without reaching their logical conclusion.
It is obvious what the ruling regime is doing. It has a well-crafted strategy to thwart rule of law. The Gilani government has a serious conflict of interest in letting the legal process take its course and is leaving no stone unturned to frustrate it and with audacity. The NRO decision held, among other things, that Pakistan’s withdrawal from the graft proceedings in Switzerland against Asif Zardari was unauthorised and the government needs to write to the Swiss authorities stating this. Almost two years later, the prime minister is yet to dispatch the letter his government was explicitly directed to write. According to reports, the NILC scandal implicates for corruption the scions of Chaudhry Parwaiz Ilahi and Prime Minister Yusuf Raza Gilani, as well as Makhdoom Amin Faheem. Similarly there are stories about Gilani’s son being involved in the Haj corruption scandal, along with former religious affairs minister Hamid Saeed Kazmi, now in jail.
The first weapon in the ruling regime’s arsenal to defeat justice is our court

system’s numbness to intolerable delays. Prosecutors and lawyers appointed by the government continue to engineer delays by abusing the court process through excuses that ordinarily avail them before courts. The second weapon is subdued and compromised investigators, who brace a motivated prosecution. For example, in the matter of appointing the chairman and prosecutor general of the NAB, the government continues to drag its feet despite repeated orders. Without a functional accountability institution, the ruling regime can make hay with impunity while the sun continues to shine on its political fortune. Thus, keeping the matter of NAB appointments embroiled in legal controversy serves the ruling regime’s interest.
And in the event that any law-enforcement officer or investigator refuses to bend the law to oblige members of the ruling regime, he is strongly penalised for showing traces of integrity. The cases of Zafar Qureshi, Hussain Asghar and Sohail Ahmed are before us, to name a few. They have been held out as examples by Prime Minister Gilani’s government for all those officers who still feel the weight of their conscience. Senior bureaucrats understand that they are stuck between a rock and a hard place. If they play ball with the Gilani government, the Supreme Court might get them tomorrow. But if they do what is right, Prime Minister Gilani will get them immediately. This creates an environment where pandering to the whims of the ruling elite becomes more lucrative and enticing than abiding by the law. Together, this scheme neutralises two vital components of the criminal justice system: the prosecution and the investigation.
And where none of these machinations serve the desired purpose, the Gilani government simply falls back on disobeying court orders. In this backdrop, where the executive arm of the state primarily responsible for upholding the rule of law has emerged as the party most interested in scuttling it, it is understandable that the Supreme Court needs to subject the work of investigators and prosecutors to strict scrutiny even though they traditionally fall within the domain of the executive. After all, the Constitution mandates the judiciary to oversee the justice system within the country. And thus the Supreme Court cannot wash its hands of its constitutional responsibility to ensure due administration of justice merely because the Gilani government has a vested interest in throwing a spanner in the judiciary’s work.
As a general principle, the judiciary must never involve itself with the transfers and postings of officials serving the executive branch (or delve into matters that fall exclusively within the domain of a coordinate branch of government). But when such transfers are aimed at disrupting the outcome of judicial process, court intervention doesn’t amount to usurpation of executive authority. It is merely an effort to preserve fair administration of justice. Once it is understood that the court cannot allow the concept of separation of powers to be used as a tool by the executive to undermine the integrity and independence of investigators to sabotage the administration of justice, the question then is, what is holding back the Supreme Court from exercising its rightful constitutional authority to get its orders implemented?
Whether it is contempt in the face of the court, victimisation of witnesses, scandalising the court, prejudicing a fair trial or plain disobedience of orders, what is fundamentally at stake is not the dignity of judges but the citizen’s individual right to fair trial and a nation’s collective right to impartial administration of justice. And a court administers justice by exercising its power to give orders. If its orders begin to be disregarded with impunity, what is at risk is not the credibility or personal esteem of judges comprising the court but the writ of law itself. It is thus that the contempt of court law provides for the imposition of penalty as well as jail time. The contempt jurisdiction is not to be used lightly. But where it is established beyond doubt that the disobedience of a court order is deliberate, the court has no discretion to take a lenient view of such contempt.
If the Gilani government is deliberately flouting judicial orders, is the Supreme Court not under a constitutional duty to apply the law without fear, prejudice or considerations of expediency? Can the court take into account public opinion or the political consequences of its judicial determinations while administering justice? Why should the legal fraternity and the civil society roll up their sleeves to march in aid of the Supreme Court while the court refuses to utilize the constitutional machinery available to get its orders implemented? Why is it that instances of executive disobedience continue to make newspaper headlines and yet no one ever gets punished for contempt? Why is the apex court’s disenchantment with the Gillani government obvious during court proceedings, but not equally reflected in court orders? Does the legal maxim that “judges don’t speak but their rulings speak for them” not relevant anymore?
Whether it is the writing of a letter to Swiss authorities, the appointment of the chairman of the NAB or transfer of investigators in the NICL and Haj cases, the ultimate responsibility of the government’s acts and omissions rests with Prime Minister Gilani. He may in reality be his master’s voice, but are such practical matters of any consequence for the law? If the Constitution vests the executive authority of the state in the office of the prime minister, it is he who must be held accountable for the abuse of such authority. It is about time Yusuf Raza Gilani is held to account for the responsibility that comes along with the privilege he continues to relish. To say this at the risk of repetition, unless elected and unelected public officeholders learn that the cost of disobeying the law outweighs by a wide margin the likely benefit of serving the illegitimate interests of their masters, rule of law will continue to erode in this country.

Email: [email protected]