Gains and losses

December 8, 2013

Gains and losses

This week, as Iftikhar Muhammad Chaudhry retires from his Constitutional position as the Chief Justice of Pakistan, the International Commission of Jurists (ICJ) have published a report, called "Authority without Accountability", which attempts to analyse the gains and losses that have resulted from the jurisprudence of the apex court over the past some years. The ICJ report, a total of 100 pages long, reviews a series of judgments of the honourable Supreme Court, under the stewardship of Iftikhar Muhammad Chaudhry, in order to assess "the Supreme Court’s efforts to bring accountability to a government and military that have long failed to protect and respect the rights of millions of people in Pakistan."

From a structural perspective, the ICJ report starts with an introduction of the "International Legal Framework" that governs the fundamental rights discourse in Pakistan, along with a historical perspective of the country -- outlining successive military coups, followed by the removal of judges by General Musharraf in 2007, and the Lawyers Movement culminating in the restoration of the deposed judges. In so doing, the report correctly points out the historically complicit role of Pakistan’s judiciary in validating military intervention, under the now discarded Kelsenian idea of ‘doctrine of necessity’.

The non-sectarian, and even pan-religious, nature of the appeal of Hussain is also remarkable in bringing together people from different viewpoints.

With the swearing-in of Iftikhar Chaudhry as the Chief Justice of Pakistan in 2005, the report observes that the court, "almost immediately", started showing signs of judicial independence, and resistance to the military regime. This observation, however, is perhaps incorrect in light of historical facts. While it is true, as pointed out by the ICJ report, that in 2006 the honourable Supreme Court, under the leadership of Iftikhar Chaudhry, took a bold step in blocking the privatisation of Pakistan Steel Mills Corporation, but it cannot be denied that the honourable Chief Justice, and his court, until early 2007 was deferential, to a large extent, to the military ruler and the GHQ.

Having been sworn in on the PCO, the court, despite its wide and sweeping powers of judicial review, did not take any tangible steps to undo the unconstitutionality of Musharraf’s regime. The court and the military regime existed and functioned in a symbiotic relationship. In fact, it was only once the Chief Justice was removed from his office, in March 2007, that court’s ‘resistance’ surfaced. And the real vigour and passion of judicial oversight of executive actions did not gain momentum till after restoration of the judges in March of 2009.

Having laid out the historical context of Iftikhar Chaudhry’s resurgent Supreme Court, the ICJ report proceeds to analyse and discuss three major aspects of its jurisprudence: 1) The Supreme Court’s interpretation of Article 184(3), 2) The honourable court’s human rights record, 3) Ancillary issues arising out of the "expansive use of original jurisdiction".

In terms of the first -- the court’s interpretation of Article 184(3) of the Constitution -- the report begins by describing how Pakistan’s Constitution, unlike most other Constitution (except India), allows "any party" to approach the Supreme Court in regards to matters concerning "public importance", and that also allows the apex Court to take cognizance of such matters in exercise of its "suo moto" jurisdiction. There is no requirement of an "aggrieved party" establishing a "locus standi" in such cases.

The ICJ report, combing through select judgments, including the Memogate and OGRA case, points out that while the honourable Supreme Court, under Iftikhar Chaudhry, has shown considerable impulse to invoke Article 184(3), no clarity has been provided by the court on what exactly constitutes the idea of "public importance", or when exactly does a matter concern "fundamental rights", warranting the use of Article 184(3). This lack of clarity, the report opines, lends an air of arbitrariness to the exercise of Article 184(3), by the honourable Court, and in the process erodes confidence in the dispensation of justice.

Specifically, the ICJ report places reliance on the Arsalan Iftikhar case to demonstrate the problem: in the said case, the honourable court first took cognizance of the matter (relating to Arsalan Iftikhar and Malik Riaz), as a suo moto case, arguing that it casts aspiration on the independence of judiciary and is therefore a matter of "public importance". Thereafter, the court dismissed the matter, to be taken up by a competent investigative agency, on the bases that the issue concerns two private individuals and thus is not one of public importance. When Arsalan Iftikhar approached the court once again, in review jurisdiction, claiming that the government investigation (by NAB) is not ‘independent’, the court "agreed to review its earlier order when it had already decided the matter was not of public importance and thus not within the purview of its jurisdiction under Article 184(3)".

Turning its attention to the second issue -- the human rights cases -- the report lauds the efforts of the honourable Supreme Court in attempting to take on an increasingly large number of cases where fundamental rights of hapless citizens are being violated. To this end, the ICJ report discusses and lauds the court’s interference in the case concerning public lynching of two brothers in Sialkot, shooting of Sarfraz Shah in Karachi, and those relating to acid violence and rape victims.

However, the report also highlights the limitations of the honourable court’s success in regards to other human rights cases, specifically those dealing with the issue of missing persons. Narrative of the report explains that while the court has tried to ensure the recovery of missing persons, the military and intelligence establishment has been, for the most part, successful in defying the Supreme Court. To this end, the report alludes towards the idea that the honourable court has stopped short of taking the steps necessary to bring the military and securities agencies within the fold of law and the Constitution.

Finally, addressing the third issue -- consequences of the expansive use of original jurisdiction -- the ICJ report also points out that the apex court’s obsession with the exercise of Article 184(3), and the time that such politically sensitive cases take in terms of disposal, has created an "unsustainable workload and backlogs in the Supreme Court". Also, the use of Article 184(3) by the Supreme Court to pass prima facie strictures against concerned individuals, prejudices the ability of trial courts to conduct subsequent dispassionate proceedings, and violates accused’s right to fair trial (Article 10A of the Constitution).

Furthermore, the report concludes that in several cases -- including challenge to the legitimacy of the Balochistan government, supervision of NAB investigations, and matters concerning ECP -- the apex court’s use of Article 184(3) has gravely violated the precarious balance of Constitutional separation of powers.

The ICJ report, while less than thorough in its analysis of all issues concerning the Supreme Court today, has still touched upon the major themes that jurists and legal commentators within Pakistan have been advocating for several years now. The struggle for ‘rule of law’ in this country, which started with the fabled movement of the lawyers in 2007, has gone awry somewhere along its journey. Fidelity to the idea of rule of law necessitates that, while recognising and appreciating the gains made by the honourable court over the past years, we also critique (with aim of reform) the trajectory of our jurisprudence.

As the legal fraternity and the Supreme Court look past the tenure of Iftikhar Chaudhry, we must be truthful to ourselves and our constitutional ethos, and together -- with hope and a renewed vigour -- take on the endeavour of perfecting the project of justice in our land.

Gains and losses