The court doesn’t victimise or compromise
In juggling, right before the actor catches the objects, there is a moment when all the pieces are in the air. And with bated breath, everyone – including the juggler – waits in anticipation of whether the pieces will land safely, or will there be a fumble. The judicio-political saga of the PM’s contempt proceedings has just experienced such a moment. But surprisingly, at the end of it, no one is really sure whether the conclusion has been a moment of triumph for the juggler, or a fumble of embarrassment.
The short-order of the Supreme Court has been announced. And a cursory glance at the electronic and print media will reveal that it has not been well received by either side of the political and legal divide. For one it is too little, while for the other it is too much! And regardless of which interpretation is correct, the judicial currency (which, in effect, is the moral authority of law) has taken a hit.
Let’s get the facts out of the way first. The short-order of the apex court, does two things: 1) it finds the PM “guilty” and holds him “convicted” for contempt of court under Article 204(2) of the Constitution (and the Contempt of Court Ordinance), and 2) it sentences him to “imprisonment”.
The first of these – conviction itself – has two parts: 1) the PM has been convicted “for willful flouting, disregard and disobedience” of court’s directions in the NRO case, and 2) the court goes a step further to declare that this disobedience “is substantially detrimental to the administration of justice and tends to bring this Court and the judiciary of this country into ridicule.”
The second part of the judgment – sentencing – also has two parts: 1) the court punished the PM “with imprisonment till the rising of the Court”, and 2) the order expresses that a restraint has been shown in prescribing this light sentence because, the judges “note”, this conviction is “likely to entail some serious consequences in terms of Article 63(1)(g) of the Constitution” (disqualification). In other words, the court reveals its mind in almost saying that ‘even though the crime itself deserved a graver sentence, we have decided to go easy since the convict is the PM and this decision will have political ramifications for him’.
This carefully drafted short-order, prima facie, seems a reasonable one. In fact, it can be argued that the judiciary has exercised wisdom in coming to a conclusion that upholds the law and protects the sanctity of judicial orders, while still making sure that the Chief Executive of our country is not handcuffed on the front-page of all local and international media.
Still, both sides of the legal and political gulf seem unhappy with the outcome. The PM’s camp (and therefore, by extension, the PPP, its supporters and the allies), while holding their stance that the Prime Minister is not guilty, are criticizing this order on the basis that it goes beyond the ambit of the ‘charge’ against the accused. Aitzaz Ahsan has gone to all lengths in explaining that the PM was never tried for ‘scandalising the court’, and therefore a conviction in this regard falls outside the parameters of law, and violates the fair trial requirements of Article 10A of the Constitution. (Though it should be pointed out that the charge mentions Article 204 of the Constitution, which includes ‘scandalising’ the court).
On the other hand, elements in the opposition parties and a certain segment of the media, is disappointed that the court showed restraint in the sentencing just because the convict is the prime minister. They would rather have seen handcuffs and a possible wrapping-up of the existing political dispensation. A few have gone as far as calling this restraint of the court a new ‘doctrine of necessity’. (That’s okay because the bigwigs of media are beyond the reaches of contempt law).
In the larger scheme of things, it is less important which side one agrees with. The worrying part is that a large fraction from all sides of the political divide, views the court’s judgment as either victimisation or a compromise. This would not be a problem in societies that have stable institutions and an entrenched sense of constitutionalism because a decision of the court, so long as it is within the ambit of the law, should not be concerned with the socio-political consequences (Fiat justitia ruat caelum – let justice be done though heavens may fall). In Pakistan, however, at a time when all institutions (including the judiciary) are searching for legitimacy, public acceptance of a court judgment that has political consequences, matters a great deal. And our restored judiciary has been conscientious of this fact over the past some years (asserting its relevance and legitimacy by taking on issues of ‘public importance’ through the exercise of suo moto powers).
The binding authority of law, and of court orders, is a moral authority. Unlike the executive, the courts do not have an army or administrative machinery at their disposal to enforce their verdicts. It is only the impartiality and correctness of the court that lends it the necessary moral currency to makes it binding on all others to follow judicial pronouncements. People must see the court has unbiased and unflinching, because of which the executive will have to implement the court’s orders, lest they face the wrath of the electorate for judicial disobedience. And this moral currency erodes if the court is seen as victimising by one side, and compromising by the other.
Right or wrong, the rhetoric from either side – of doctrine of necessity or of judicial martyrdom – resonates with the masses who are unable to nuance between civil, criminal or judicial contempt. It damages the legitimacy of the court. And if all sides of the partisan divide and its supporters are alienated by judicial verdicts, it could undo the moral authority of law, and squander the gains of the lawyer’s movement for restoration of judiciary.
The writer is a lawyer based in Lahore. He has a Masters in Constitutional Law from Harvard Law School. He can be reached at: saad@post.harvard.edu