The essence of justice: seeing is believing

Khan Sahib: you’re just re-enforcing the conspiracy theory

                                           

The Whatsapp episode, the leaking of the picture of Hussain Nawaz and taping of the telephones of the PM house surely created doubts about the whole exercise. The legal and constitutional experts all along have been also critical of SC acting as a trial court and the formation of JIT.

In my columns I have invariably characterised Imran Khan’s convulsions as a loose-cannon like behaviour because of his impulsive propensity to say things without thinking about their implications or even the possibility of revealing his secrets in a boastful vein. While speaking to a private TV channel In the backdrop of the SC decision disqualifying former Prime Minister Nawaz Sharif, Imran Khan divulged details regarding filing a petition in the SC in the Panama case – saying that the former CJP Justice Anwar Zahir Jamali and Justice Asif Saeed Khosa had called and asked him to approach the court instead of agitation on the streets arguing that they had to save the country from unrest and crisis. According to Imran, Justice Khosa said apex court was the supreme forum to resolve conflicts.

This is indeed a very startling revelation which goes to reinforce the impression of something fishy about the whole affair. Why would the Judges of the apex court call a political leader and urge him to approach the court, after they had even refused the formation of a judicial commission as requested by the now ex-Prime Minister through a written request to the apex court saying that the existing law was not adequate enough to deal with a matter like the Panama case? Justice Asif Saeed Khosa is the same judge who during the hearing of the case called the government a mafia and gave the epithet of ‘the Godfather’ to the (then) Prime Minister, which was against the code of conduct of judges issued by the supreme judicial council as well as the internationally agreed practice of judges – that of speaking through their decisions rather than making disparaging remarks about any of the party to a dispute.

During the hearing of the case majority of the people were convinced that the court had already made up its mind and the Sharifs were going to be at the receiving end. This impression was surely a sequel to the way the case has been handled by the SC and its inability to address the reservations of the Sharif family regarding the inclusion of some members who had political affiliation and the coercive and intimidating posture of the JIT members towards some of the witnessed called for questioning. The Whatsapp episode, the leaking of the picture of Hussain Nawaz and taping of the telephones of the PM house surely created doubts about the whole exercise. The legal and constitutional experts all along have been also critical of SC acting as a trial court and the formation of JIT.

The decision delivered by the SC disqualifying the PM therefore has not come as a surprise for many. Yes, it was been accepted by the government because there was no choice but it has come under severe criticism both within and outside the country due to the fact that the reasons of disqualifying the Prime Minister are other than the prayers made in the petitions in this regard, which has baffled my legal minds who fail to understand the new precedent set by the apex court. The gaffe by Imran has strengthened the argument of those who believe that removing the Prime Minister was a sequel to a conspiracy. Well, whether it was a conspiracy or not, the judges by contacting a political leader and suggesting him to file the petition is simply untenable. The judges are not supposed to have any contact with the litigants or even engage in conversation with them about the issue at hand.

There is a legal aphorism ‘Justice should not only be done; it must also be seen to be done.’ This is a universally accepted principle of jurisprudence. The historic perspective about this principle is the landmark decision given at the King’s Bench Division (UK) in 1923 in a judicial review in which a motorcyclist who was convicted by a court for negligent driving contended that the clerk of the judge was a member of the firm of solicitors acting in a civil claim against the defendant arising out of the accident that had given rise to the prosecution. The convict and his solicitor filed the review on learning the provenance of the clerk.

The judge acquitting the convict held “It is of fundamental importance that justice should not only be done but should manifestly and undoubtedly be seen to be done. Nothing is to be done which creates even a suspicion that there has been an improper interference with the course of justice. The two-fold position of the clerk was a manifest contradiction. In those circumstance I am satisfied that this conviction must be quashed.” This ruling is derived from the principle of natural justice and has been followed through the world in countries that use the English legal system. It has been applied in many diverse situations. The most famous example is the Augusto Pinochet (former Chilean military dictator) case, where the House of Lords overturned its own decision on the ground of Lord Hoffman’s conflict of interest. Pinochet was arrested under an international arrest warrant during a visit to London on 10 October 1998 in connection with numerous human rights violations. However he was later released and returned to Chile in March 2000.

The televised gaffe by Imran in the backdrop of the decision has strengthened the argument of those who believe that removing the Prime Minister was a sequel to a conspiracy.

In the light of the foregoing the contact of the judges with the petitioner prompting him to file a petition, is a highly objectionable behaviour and can easily form the basis of a review petition seeking reversal of the decision of the five-member bench.

Unfortunately Imran’s credentials as a political leader seeking access to corridors of power through legitimate means in a democratic polity are not very enviable. Since his advent on the political scene as a result of 2013 elections he has been doing everything possible to destabilise the present political set-up and also has the distinction of being dubbed as a pawn on the power chess-board and part of an international conspiracy along with the Tahir ul Qadri to oust the Sharif government. Who can forget his repeated boasts of umpire raising the finger any moment, a claim that created severe doubts about his political credentials? Whether there was any umpire who actually assured him of intervention or not but Imran through his boastful convulsions corroborated the existence of such an umpire. Thank God that umpire could not make his move to plunge the country into a political turmoil.

I have been insisting in my columns that whatever the decision of the apex court in the end, it will have serious political repercussions and the SC itself may not emerge unscathed from the episode. That is exactly what we are witnessing in the aftermath of the verdict. I am afraid it has not added to the prestige of the apex court judges who delivered that unprecedented and mind-boggling decision.