The umpire’s call

20 Jan 2020

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The writer is a lawyer.
The writer is a lawyer.

THE Decision Review System (DRS) in cricket allows for the overturning of a decision taken by an on-field umpire after it is referred to the third umpire. You have to find a clear error in the footage to have the batsman declared ‘out’ or ‘not out’ as the case may be. Three conditions, underscored by three red lights, have to be fulfilled for the decision to be overturned.

When the footage is being reviewed and the replays suggest that even one of the three conditions could have gone either way, the umpire’s original decision stays.

The scope of review of judicial decisions is like the DRS. It is limited to an ‘error floating on the face of the record’, and it needs to go back to the original decision-maker so that they may once again ‘review’ their decision.

Lately, the review of Supreme Court decisions has appeared more like appellate jurisdiction where it doesn’t exist. Some recent review decisions have nullified the original decisions and gone far beyond any pretence of the correction of errors. Controversial reviews also occur soon after critical members of the original benches have retired, with the remaining members now taking a back seat when a fresh perspective is brought forward by a new member of the bench.

In the army chief extension case, the recently filed review by the government proposes to extend these skewed boundaries further.

The scope of review of judicial decisions is like the DRS. It is limited to an ‘error floating on the face of the record’.

The Supreme Court had in the first hearing identified four issues related to deficiencies in procedure and the lack of allowance in the law concerning the attempted extension. It had tasked the government and its legal team with addressing the court on these issues.

After some amateur fumbling by the government in the hearings that followed, it was established that the government through its attorney general did agree that the rules used to extend the tenure were deficient, and that the law lacked clarity.

Then, the Supreme Court declared via a short order that the framework through which our chiefs of army staff were appointed and their tenures determined was severely deficient; and whatever, in fact, existed did not allow for any ‘extension’ (as attempted by the federal government) in the service of a serving chief. The court held that any attempt to rely upon the rules and regulations to cover for what the act did not allow was at best an inventive interpretation of the allowances contained in the Army Act, and at worst simply illegal.

Instead of then taking the matter to its logical conclusion and declaring the extension a nullity, the Supreme Court relied upon assurances given to it by the attorney general, who, firstly, accepted that there were lacunae in the process and that it needed improvement, and secondly, that the government would do its utmost to remedy those failings.

Based on these assurances, the Supreme Court opted to exercise what it called judicial restraint and gave the government six months to put its house in order.

Later, by way of its detailed judgement, the Supreme Court explained the unique chart of the development of laws concerning the army in Pakistan, having embarked on its explanation from a similar position to other laws concerning armies in times of colonialism. It commented in detail on how the laws were mute regarding tenurial limitations and the terms and conditions of service, and how the consequently framed rules and regulations were contradictory. It noted how rule-making had been illegally delegated to the executive when the Constitution holds this to be the sacred and exclusive duty of parliament. The court also noted the supreme power of the will of the people, and how no rules or regulations could be kept ‘confidential’ from the people and their elected representatives as had been attempted. The court then relied upon its interpretation of judicial restraint, and opted not to raise the finger of dismissal even though it declared the wicket to have fallen. It did so in these words:

“The people of Pakistan may accept or reject the institutional practice through their chosen representatives in parliament … The attorney general has assured us that the necessary legislation will be brought into effect within six months to plug this legal vacuum. This assurance has tempted us to exercise judicial restraint in the matter, so that the people of Pakistan may decide this question through parliament.”

On what grounds is a review now being filed? The errors the government has pointed out speak of the Supreme Court ignoring ‘departmental practice’. This is after the Supreme Court took note of the departmental practice, and called it deficient. There is the question of law in the government review petition which asks whether the judgement was in keeping with the “constitutional conscience” of the state. There is a paragraph which states how the enemies of Pakistan were “very happy” when the extension “fell into jeopardy”. No attempt is made at supplying proof of how the state’s conscience was examined and how any enemy’s emotions were measured.

There is also a question of the law which asks whether the undertaking given by the attorney general was ‘general’ and subject to cabinet or parliamentary approval before being specifically given. The government is trying to say that the attorney general was wrong in declaring the government’s intent to bring the issue to parliament. It would be interesting to see whether the attorney general himself turns up to argue that the error on the face of the record was that his own assurances were incompetent.

The ‘error’ being identified as grounds for review is the government’s own. It is something which the government benefited from. The consequence of the attorney general not giving the undertaking that the government would legislate to correct deficiencies in the process of the army chief’s appointment would have removed the possibility of the ‘necessary restraint’ exercised by the court. It was the singular reason why the finger wasn’t raised in the first place. Otherwise, three red lights would be flashing and the (third) umpire would have been redundant.

The writer is a lawyer.

Twitter: @jaferii

Published in Dawn, January 20th, 2020