Perception of justice

Almost as important as justice itself

Soon after delivering its judgment in the NRO case, the Supreme Court has taken up the case of the memo sent by Mansoor Ijaz to Mike Mullen. The PPP has expressed fears that Zardari is being made the target in both cases. In the first case, the Prime Minister is to move the Swiss government to initiate the legal proceedings against the President. Gilani has taken the stand that President Zardari enjoys presidential immunity and cannot be proceeded against in any court. The issue is finally to land up in the SC. Some of the PPP stalwarts led by Babar Awan have resorted to innuendos that convey that the apex court is prejudiced against Zardari.

There is a need on the part of the government to carry out the apex court’s orders irrespective of whether it considers them right or wrong. Unless this is done, there would be anarchy in the country. The court has, however, to conduct itself in a way that it is seen to be impartial.

This is all the more needed in a situation where a nascent democracy is struggling to come out of the shadow of the army, parliamentary committees are trying to grow and function, and the political scenario is rife with excessive polarisation between the rival parties.

There is no doubt that the court displayed unique judicial restraint in a number of cases, particularly the NRO case, where it had to face dilatory tactics on the part of the government’s legal team. The court even allowed the government to change the counsel with a relaxation of rules.

Important procedural questions, however, are being highlighted by both the legal community and the media which need to be taken note of. Foremost among the expectations from the court is that it would act in a transparent manner. Among the matters that need transparency is the fixing of the priority of the cases to be taken up. How does the apex court decide which one of the cases has to be attended to immediately? Is the choice dictated by well defined and clearly spelled out parameters or subjective assessments? What considerations dictate the choice, particularly in cases with important political ramifications? Why are cases considered by many to be of great national importance remain unheard for years while others are taken up immediately?

A human rights petition was filed by Air Marshal (rtd) Asghar Khan in 1996 in the Supreme Court against the retired COAS General Mirza Aslam Beg, the former ISI Chief Lt-General Asad Durrani and Younis Habib of Habib and Mehran Banks, relating to the disbursement of public money and its misuse for political purposes. On the basis of Asghar Khan’s letter, attached press clippings and an affidavit signed by Asad Durrani listing the politicians to whom money had been paid, the SC decided to register a case under Article 184(3) of the constitution. The list included major politicians from the PML(N) and Jamaat-e-Islami as well as right-wing journalists. The hearings continued after prolonged gaps till 1999. The last hearing of the case took place on October 11, 1999, a day before Pervez Musharraf’s military coup. All subsequent attempts by the aging Asghar Khan to get the hearings started failed to move the SC. The case, as Cowasjee put it, has remained morgued amidst thousands of pending cases lying with the Supreme Court of Pakistan.

How come that the NRO case was given priority and no similar alacrity shown in taking up similar cases against another category of politicians, particularly the stay cases involving billion of rupees belonging to public?

When the judges speak too much, problems are bound to arise. The judges would do well to let the judgments speak for themselves. During the proceedings of the case regarding the memo, remarks referring to the Watergate scandal or the observation that the president could be punished for conspiring against the state and the army under Article 5 of the constitution are likely to raise concerns at an early stage of the hearings.

The importance of public perceptions regarding the courts’ decisions is recognised in the maxim “Justice should not only be done but also seen to have been done”. Perceptions about the conduct of a case play an important role in the evaluation of the judiciary by the general public. Any perception of partiality would be damaging to the court’s prestige.

The writer is a former academic and a political analyst.