APART from partisan differences, legal and political perspectives regarding current JIT/Supreme Court proceedings also differ. Legal criticisms tend to focus more on consistency, precedent, transparency and limits, while political criticisms tend to emphasise the ultimate priority of national survival and welfare. These perspectives, apart from obvious party political differences, need not be mutually exclusive. However, in times of grave national crises, the prevalence of one perspective to the exclusion of the other could render justice impossible.
One critical legal perspective deplores a “process of accountability without the right to a fair trial”. It argues that no appeal is allowed in a judicial decision under Article 184(3) of the Constitution. Accordingly, “the whole process violates Article 10A which enshrines the right to a fair trial”. It would also be inconsistent with the 1948 Universal Declaration of Human Rights and the 1966 UN International Covenant on Civil and Political Rights.
Questions of legal propriety are also raised including the formation and conduct of the JIT, non-recusals or at least non-disclosure of potential conflicts of interest, and judicial decorum including “indecorous remarks by judges on the bench”. Concerns are registered about “serving military officers representing the ISI and MI in the JIT without any apparent merit or justification”. Reference is also made to serious allegations by those questioned by the JIT and by the JIT about official tampering with evidence.
When a ‘democracy’ has been reduced to a criminal farce, legal niceties will be seen as insensitive & irrelevant.
According to this legal criticism, the JIT has become controversial, which reinforces the truism that justice must not only be done but be seen to be done. This cannot be done in the absence of “transparency, propriety and decorum anchoring a fair trial”, which in turn is not possible without a right of appeal.
Many lawyers challenge the assertion that Article 184(3) does not allow for an appeal or review of results under it. Many also note the Supreme Court entertained the Panama petition because of the dangerous political situation that had arisen because of the failure of the National Assembly to agree on how to proceed with the matter. There is also the view that insisting on a right of appeal against a judgement of the Supreme Court is to ignore the “sovereign legal supremacy” of the court.
In this context, political talk about “the court of public opinion” being superior to any court of law is nonsensical. Only parliamentary legislation within the framework of the Constitution can impact on the consideration of the Supreme Court. The mere outcome of an election is irrelevant.
An electoral outcome may, of course, set the scene for constitutional amendments. But even these, according to many legal experts, must not contradict the abiding intent and purpose of the Constitution — a matter on which the views of the Supreme Court would be critical. The Constitution, accordingly, cannot be treated as a party political document.
A critical political perspective, however, entails the broader view that the condition to which Pakistan has been reduced by corrupt leaders and representatives has rendered almost all its political and administrative institutions dysfunctional. Moreover, this has come at a time when the country faces domestic, neighbourhood, regional and global challenges that collectively comprise an existential challenge. However, none of this seems to mean anything to the rulers of the country.
The Panama case is before the Supreme Court in this existential context. It is not a normal context. It is a critical context in which precedents, paradigms and parameters of a normal context may not offer appropriate guidance. Neither, of course, does any Doctrine of Necessity that perversely sought to legitimise illegitimate military interventions.
There is no such perversity in the view that in times of complete political breakdown and comprehensive state dysfunction — brought about by the malfeasance and misdemeanours of a generally perceived corrupt and venal political leadership — it is imperative to enable an interpretation of the Constitution which can provide effective restraint against extraordinary and uncontrolled political impunity. To write this possibility off is to expose the people of Pakistan to national disaster.
Most professional lawyers, however, contest this view with the argument that such licence lies beyond the remit of any court of law, including the Supreme Court. It would establish precedents that would be used to the detriment of democracy, as indeed has been the case in Pakistan. Accordingly, even in the most dire of circumstances in which the orderly survival of the country is clearly threatened, the Constitution cannot provide any justification for a broader than usual interpretation to uphold the rule of law and the viability of the state.
Maybe this is why the legal fraternity is not always seen by the public as a progressive force. It upholds the law that underpins the status quo, which in turn is formulated and formalised by those who dominate the status quo. It embraces the concept and dynamic of incremental and cumulative change, which over time is expected to bring about a more inclusive and rights-sensitive status quo. This may be appropriate to more normal national situations than the one that currently threatens to consume Pakistan, and in which the Supreme Court has inevitably been burdened with greater expectations and responsibilities.
When a ‘democracy’ has been reduced to a criminal farce and mockery involving endless and irremediable injustice and suffering for the majority of the population, legal niceties and hair-splitting will be seen by many as insensitive, irrelevant and de facto support for their oppressors. This is surely the furthest thing from the minds of professional and fair-minded lawyers.
But without the possibility of legal redress, the only avenue of hope will lie in radical movements in search of a justice denied. Such movements will make their own law. A legal approach disengaged from political realities cannot address radical grievances that spring from overwhelmingly dreadful injustices. The gravitas and hoary traditions of the Supreme Court must impel it to stand up and be counted.
The writer is a former ambassador to the US, India and China and head of UN missions in Iraq and Sudan.
Published in Dawn, June 24th, 2017