Legal empire

January 12, 2012

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IN the recent Supreme Court Order of Jan 10, 2012 in the cases seeking, inter alia, implementation of the NRO judgment (NRO implementation cases), His Lordship, Justice Asif Saeed Khan Khosa observed: 'We are conscious that the actions we propose to take are quite unpleasant.

'Unpleasant' is perhaps too much of an understatement for a Supreme Court Order which could possibly lead to the political restructuring of our democratic system via a possible removal and/or conviction of the prime minister and president and/or a possible removal of the PPP government.

'Men make their own history, but ... they do not make it under circumstances chosen by themselves' Marx rightly pointed out. Therefore, the following circumstances, surrounding the Supreme Court Order in the NRO implementation cases, are critical.

First and foremost, the SC is at the relative zenith of its judico-politico power because infighting among the political elites and between the political and military elites have led all parties (i.e. PML-N, the army and a reluctant PPP) to become dependent on adjudications by the SC (e.g. the memo case).

In short, fragmentation among the power elites breeds greater judicial independence. Greater judicial independence breeds greater judico-political power.

Secondly, the Supreme Court Order is authored by Justice Asif Saeed Khan Khosa in relation to whom 'contemptuous language' was used in the Dec 1, 2011 press conference by Babar Awan.

In this regard, contempt notices have already been issued by the SC. Therefore,Babar Awan's strategy of targeting judges may lead to tragic consequences.

In a 12-page intellectually emotional order, the SC is clear about the basis of its judicial frustration 'persistently, obstinately and contumaciously resisting, failing or refusing to implement or execute in full the directions issued by this court' and/or 'manifested defiance towards this court ... attempted to screen, shield and protect the relevant persons from criminal charges'.

The NAB chairman, prime minister, federal law minister, federal law secretary and the PPP co-chairperson/president are accused of the former. The NAB chairman is also accused of the latter. The obvious consequences of such contemptuous conduct and action are contempt proceedings against the said persons and possible removal of the NAB chairman on grounds of misconduct. No jurisprudential surprises here.

But the Supreme Court Order becomes jurisprudentially drastic and philosophical in laying down the more drastic consequences. Firstly, a possible contempt conviction may entail disqualification from being elected, or chosen, as a member of parllament, including the provincial assemblies, for at least five years.

Secondly, a lengthy intellectual connection is drawn: the non-implementation of judicial orders would lead to a violation of judicial independence, which would lead to a violation of the constitution, and subsequently to a violation of the oath of various political offices, and finally to being dishonest and not 'ameen'.

At the end of this jurisprudential marathon, the prime minister is at least 'prima facie' accused of not being honest. The consequence may be a 'permanent clog' on qualifying for political office. Thesame consequences would apply to the president and the law minister for similar breaches of oath.

When it comes to the possible conclusions of this contempt nightmare for the SC, the latter had indicated six options for the larger bench.

Options one, two and five (disqualification, conviction and removal) are accompanied by a possible safety (third) option (judgment implementation commission).

There is a possible defence option (option four claiming immunity), and a possible political option (option six leave it to the people and/or parliament). Briefly, the SC has shown its serious intention, left its options open and given the PPP government a last chance.

The tragic failure of the PPP lies in its inability to understand why the implementation of the NRO judgment was so important for the SC. The de jure source of the SC's power is the constitution but the de facto source liesin supportive and favourable public opinion.

For the post-2007 Supreme Court of Pakistan real power lies in its ability to represent itself as a people's court or as the 'Supreme Court of the People of Pakistan'.

The non-implementation of the NRO judgment led to the public perception of the impotency of judicial power, which led to the possible destruction of its newly acquired judicial power of supportive and favourable public opinion.

But what are the consequences of the SC deciding the eligibility of politicians on the intellectually tenuous grounds of dishonesty or being 'ameen' or a violation of the latter's oath? And of disqualifying prime ministers, removing presidents and ordering regime change on other grounds? This order signifies a possible transition from a judicially activist court to one that fol-lows the jurisprudence of a legal empire. This new jurisprudence signifies that it is the SC which will determine what an honest/ameen democratic system should look like.

Judicial arbitrators have now also become arbitrators of democratic righteousness.

This possible transition to a legal empire is based on the misleading presumption that the panacea for all major problems facing the democratic system lies in the laws and judicial system. Sadly, neither our history nor a comparative political analysis of other countries proves such a legally biased thesis.

Given the complexity and gravity of Pakistan's political problems, what is required is neither a judicial constitutionalism determined predominately by the judiciary nor a political constitutionalism determined solely by the politicians, or military-led 'legalism' determined by force.

What is required is a strong democratic constitutionalism determined by politics, the law and the legitimate use of force. Yes, action should be taken for contempt but no institution should presume a monopoly over democratic integrity and wisdom.

It is precisely because of the limitations of the law visà-vis democratic problemsolving that the judiciary should be self-critical and humble in its approach.

This self-critique and humbleness is critical because as Justice Asif Saeed Khan Khosa, in an article written in 2006, brilliantly pointed out: 'It is generally appreciated that threats toindependence of judiciary are from without but I believe that the real threats to independence of judiciary are from within.

As with all human beings, one of the 'real threats' from within, is uncritical selfrighteousness.

The writer is a lawyer.