A look at both sides of the ‘judgement’
The detailed judgment of the Supreme Court in the contempt proceedings against the Prime Minister has been announced. And with it, at least part of the cribbing from the Prime Minister’s camp (regarding not knowing the detailed reasons for the order, prior to filing the appeal) must stop.
The court’s judgment is legally sound and constitutionally strong. There cannot be much argument with the legal reasoning and nuances of the order – especially when one factual truth is manifest: the Prime Minister, willfully and persistently, defied direct orders of the Supreme Court.
The judgment itself, for it to have the desired effect, must be read in two sittings (preferably with a pause in the middle). The first, Justice Nasir-ul-Mulk’s surgical account of the factual and legal issues embroiled in this controversy, and second, Justice Khosa’s passionate and eloquent note, which is almost a public appeal, resonating a brand of judicial and national idealism that has for long been missing in our jurisprudence. And by this virtue, this second part beckons a deeper look.
It is important, perhaps, to begin with stating a simple truth: Justice Khosa is not only an immaculate legal mind, but is also perhaps one of the most prolific writers that our courts have seen in a long while. Many of his judgments, from the honourable Lahore High Court, form the very standard of judicial rigour and eloquence (glancing through his book ‘Judging with Passion’ will illustrate the point). And characteristically, the instant note, reads like a page from Oliver Wendell Holme’s discourse. The idealist inside, who once took to the streets when Aitzaz Ahsan said, “Aik taraf thi janta saari, aik taraf thay chand gharane…”, wants to do the same for “Pity the nation”.
But let’s pause for a second and analyse the message behind the eloquence. This judicial note adopts the following trajectory: i) it concurs with Justice Nasir-ul-Mulk’s judgment in convicting the Prime Minister, ii) it declares that the Prime Minister’s defiance of the court is “symptomatic of a bigger malady” of disregarding the law, which we are all a part of, and therefore it is our collective responsibility to correct this evil, iii) it declares that court’s authority is a translation of the will of the people (through the Constitution), and thus “a person defying a judicial verdict in fact defies the will of the people at large”, and iv) it clarifies that no one can defy the people’s will for long, lest the populi rise up against such suppression (quoting examples of the Arab Spring, Stalin’s Russia, and lawyers movement against General Musharraf).
Justice Khosa is absolutely correct. Prime Minister’s defiance has no justification in law, and the antagonistic posture of PPP and its allies, against a judiciary simply trying to enforce its judgment, threatens the entire democratic paradigm. But wait: the argument cuts in more ways than one.
First, let’s start by observing that the examples of suppression of “people’s will” (the Arab Spring, Joseph Stalin, and Musharraf) all had to do with (unelected) authoritarian regimes, which were mostly military in character. This is markedly different from the situation in Pakistan today where (even if it is sham and incompetent) an elected government is in power. And as such, this fact weakens the other argument, which claims that judicial pronouncements are expression of public will, because the elected government and her Prime Minister (that has successfully passed three constitutional amendments even) can claim a stronger affinity with ‘public will’ than the appointed judiciary.
Next, it must be asked whether the contours of this “bigger malady”, which the judgment says has caused our “collective damnation”, envelops only the polity, the bureaucracy, the military and the people? Or does it also extend to the doorstep of our honorable courts? Depending on who you ask, the answer might start with an account of the tainted history of the courts that have validated military coups and hung an elected Prime Minister, and conclude with an allegation of biased dispensation of justice today. Now this answer doesn’t have to be true – but the fact that it exists and reverberates among many in Pakistan, is enough to dent the moral appeal of the judgment.
Let’s make this simpler: whether one agrees with it or not, there can be no denying that starting soon after restoration of our judiciary in 2009, and climaxing in the contempt verdict against the Prime Minister, there is a (significant) fraction of the population that has been casting doubt on the impartiality of the courts, calling them partisan. It must be asked, in fidelity to the sentiment of ‘Crime and Punishment’ quoted in this judgment (“The righteous is not innocent of the deeds of the wicked”), why the courts today are being viewed as biased dispensers of justice? Why is justice, even when it is being done, not been seen to be done, by all? Why is the court’s conduct not so equitable as to be beyond reproach? Why is there even an opportunity to cast doubts on the integrity or intentions of the bench?
To dismiss these questions by simply saying that people who are aggrieved by the court’s judgments resent justice, is a convenient answer, but perhaps not appropriate. Political parties, individuals, special interest groups and corporations are aggrieved with judicial verdicts in every country. And even if unhappy with the verdict, they do not exclaim that the courts are biased. Why then, in Pakistan, is this a popular sentiment in not-so-inconsiderable fraction of the population? Is it too sacrilegious to perhaps explore if the mindless crooks, who criticise the court and flaunt the law, might have a point?
Joining sentiments with Khalil Gibran’s “though the word lie heavy upon your hearts”, I would add the following to his poem:
Pity the nation where the dispensation of justice
To kings, or beggars, or every single one
Is done, but not manifestly seen to be done.