Playing monopoly

April 30, 2012

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The ancient Chinese are said to have devised an unusual curse with which to spite their most hated enemies: “may you live in interesting times.” Another is: “may you come to the attention of those in authority”. They would certainly have sympathised with Mr. Gilani, who having lived in interesting times, has now come to the attention of those in authority.

According to the short order passed by the Supreme Court on 26 April 2012, the prime minister has been charged with and convicted for contempt of court. The ‘contempt’ complained of, is Mr. Gilani’s failure to follow the directions given to the Federal Government in the case of Mobashir Hassan v Federation of Pakistan – specifically, to take all possible steps to revive Swiss proceedings against the president. According to Mr. Gilani, this is utter nonsense. He asserts that he was convicted “for protecting the Constitution.” In support, Mr. Gilani relies on the immunity granted to the president under Article 248 and his own inability to act in violation thereof.

At first sight, the prime minister’s argument seems absurd: it is difficult to see the connection between presidential immunity under the Constitution of Pakistan and criminal proceedings in the distant realm of Switzerland. Whether Swiss law provides any immunity to foreign heads of state, such as Mr. Zardari, is a question for their courts to determine and not ours. On the other hand, the Supreme Court’s insistence that the president of Pakistan should be subjected to Swiss law in relation to an allegedly criminal act committed in Switzerland, seems no less bizarre. After all, our courts and our government should concern themselves with violations of the laws of Pakistan, not the laws of Switzerland.

The reason why the Supreme Court has ordered to the contrary in the present case is self-evident: the Federation has so far failed to secure a conviction against Mr. Zardari under Pakistani law and in Pakistan, where the actual corruption of which he is accused is alleged to have taken place. Therefore, we are now compelled to make sense of myriad obscure and nonsensical legal debates on issues of ministerial correspondence, Swiss law and presidential immunity overseas.

As a result, we’re thrust into a deadlock: the Supreme Court says Mr. Gilani must, under the Constitution, write to the Swiss authorities, and Mr. Gilani himself claims that the Constitution itself prevents him from doing so. But there is a third possibility: that the Constitution has nothing to do with the matter whatsoever. What Mr. Gilani has violated, is not any specific Constitutional provision, but the Supreme Court’s broad interpretation (as set out in the Mobashir Hassan Case) of what his Constitutional duties and obligations compel him to do.

This brings us to a most fundamental issue which few legal commentators consider in any detail: do judges have a monopoly on interpreting the Constitution? In the alternative, does Mr. Gilani have any justification for asserting that he is defending the Constitution as he understands it to mean? Is there any Pakistani equivalent to the famous assertion of principle by Charles Evans Hughes: “the Constitution is what the judges say it is”?

Let’s be clear: our Constitution itself reserves exceptions to the general principle. Under Article 47, if a president is to be impeached (whether for “violating the Constitution” or even otherwise), it is Parliament which determines whether or not a violation has occurred and whether impeachment is appropriate. This example, anecdotal as it may be, pierces the myth of a monolithic general principle, i.e. it is only judges who can or should, in all cases, make sense of the Constitution. There are certain matters, in which it is not the judges, but rather the People of Pakistan, acting through their democratically elected Parliament, who must decide what is or what is not constitutionally correct and act on that basis by expressing their will.

The same is true for most day-to-day affairs of governance. The Speaker of the National Assembly, a person who acts on the basis of her constitutionally imparted duties, does not have a judge at her elbow, so to speak, to ‘interpret’ for her what her daily functions should be. This would be not only legally but also practically absurd. If we mere mortals have no conception of what the Constitution can or does mean, then how is it even possible that we may enact it, change it, or even repeal it should we so choose, as our Parliament recently did, by passing the 18th Amendment?`

The truth is that the Court only derives its exclusive monopoly on interpretation when it is acting within its Constitutional ambit, as an authoritative third-party arbiter in the context of disputes brought before it under its appellate or its original jurisdiction as defined within the Constitution. This is self-evident – in a private conversation regarding constitutional matters, a judge and a parliamentarian are free to debate as they will. It is only when the judge sits down ‘as a judge’ so to speak, that his opinion becomes authoritative.

I have grave doubts whether the present case regarding the prime minister fits the bill. The main problem is that the Supreme Court itself is not, in this context, working within the narrow walls of jurisdiction set out in Articles 184 and 185 of the Constitution. Rather, it purports to act within an ambiguous niche carved for itself, i.e. suo moto jurisdiction – an area of the law which is woefully obscure at present. As such, the boundaries of the Supreme Court’s powers are perpetually shifting and it is therefore, only natural for other Constitutional actors to react against this rapid expansionism.

The point made above is not merely academic. The fact remains that it is not practically possible or legally permissible for our Supreme Court judges to take upon themselves the function of all other branches of government. Having given a judgment, it is not within their capacity to also then become the jury and executioner. They have no police force to command, or army to do their bidding.

Most importantly, they do not have the mandate of the People to take such action. Ultimately, there is only one tried and tested way of ascertaining the will of the People. Election day is not far and the president may yet face justice.


The writer is a lawyer practicing in Karachi.

The views expressed by this blogger and in the following reader comments do not necessarily reflect the views and policies of the Dawn Media Group.