- Brining back the doctrine of necessity
It was an all-out attack. The video was out. The NAB Court’s Judge, Muhammad Arshad Malik, who convicted and sentenced former Prime Minister Nawaz Sharif, was seen making a clean breast before Nasir Butt that he was intimidated into returning a verdict. Ostensibly, this video struck at the root of the judgment. It caused a virtual political earthquake, leading many to question the conduct of the judge and the sorry state of affairs prevailing in the judiciary. In the face of this shocking video, the Supreme Court on its own motion should have exercised its jurisdiction under Article 184(3). However, it was not to be.
It happened that following this video, three petitions under Article 184(3) were instituted, seeking the indulgence of the Supreme Court to constitute a commission to probe into the matter and to direct the Lahore High Court to take disciplinary action against the judge. Meanwhile, the appeal preferred against the conviction and sentence of Nawaz Sharif in the NAB case was pending before the Islamabad High Court.
72 years have gone by and we have been stumbling from one controversial judgment to another. Every time, a claim is put forward that the genie of the doctrine of necessity has been successfully shut in a bottle, it comes out shattering it. Every time, the notion of independence of judiciary seems as elusive as ever. Every time, the people of Pakistan in general, and the lawyers in particular, hang their heads in shame
Curiously enough, at the outset in the judgment, the Supreme Court framed as many as five issues and dealt with them one by one. One question relates to the forum of investigating the matter, three questions to the genuineness of the video and one to the conduct of the judge. The long and short of the judgment is that it entirely falls within the jurisdiction of Islamabad High Court, Islamabad (as an appellate Court) to decide the question of admissibility of the scandalous video, given the principles laid down in Section 428 (additional evidence) of CRPC 1898 and Article 164 (production of evidence through modern devices) of the Qanun-e-Shahadat Order, 1984, and that Arshad Malik’s conduct is “stinky”, “sordid,” shocking” and “disgusting”, leading honest judges to “hang their heads in shame”. Further, as the FIA lodged the FIR against the persons involved in the video scandal, no commission is required to be formed.
The judgment notes on the one hand that the report of the FIA indicates that the forensic examination of the video was carried out, and it was found to be authentic, believing in the admissions made by Arshad Malik in sworn affidavit. On the other hand, it focuses on the question of admissibility of video at great length, gleaning principles from a string of judgments, thereby delving into a purely academic discussion. One is at a loss to reconcile this seemingly irreconcilable contradiction floating on the surface of the judgment, not least when Article 113 of Q.S.O. states that admitted facts need not be proved.
Anyone having had a smattering of law knows that it is a rudimentary legal principle that “not only must justice be done, but must also seem to be done”. It is a principle founded on “natural justice”. If a judgment suffers from even a patina of bias, prejudice or is an outcome of preconceived notions, it should not be allowed to stand. If it is rooted in bias or smacks of extraneous considerations, it is the outcome of colourful exercise of jurisdiction. Impartiality is the precondition for a judge to hear and adjudicate upon a case. This particular principle was settled way back in 1924 in a case titled “R V Sussex Justices, ex parte McCarthy”, reported as ([1924] 1 KB 256, [1923] All ER Rep 233) by CJ Justice Lord Hewart. It was reiterated in the case of “Government of Sindh and others versus Saiful Haq Hashmi and others” reported as (1993 SCMR 956). An excerpt therefrom is worth quoting:
‘According to the well-settled principle, justice is not only to be done but it should be seen to be done. It should be seen to be done by the conduct of the Judge, the manner he entertains, proceeds and hands over the written decision. Each and every step in a judicial proceeding should demonstrate the integrity, honesty, bona fides and impartiality of the Judge…The Courts presided over by Judges are institutions which command respect, faith and confidence for implementation of rule of law, justice and equity. If at any stage justice is tainted, tarnished or contaminated with dishonesty and corruption or abhors the judicial conscience, the blame squarely lies upon the judge for behaving in a manner unbecoming of a Judge or a gentleman. Purity of the fountain of justice has to be maintained and protected zealously from corruption, contamination and pollution which distorts its angelic and divine face.” The Indian Supreme Court, in the leading case reported as AIR 1977 SC 1512 (State of Haryana and Anr. vs Rattan Singh), held: “The essence of a judicial approach is objectivity, exclusion of extraneous materials or considerations and observance of rules of natural justice. Of course, fair play is the basis and if perversity or arbitrariness, bias or surrender of independence of judgment vitiate the conclusions reached, such finding, even though of a domestic tribunal, cannot be held good”.
A catena of questions stare us in the face: Was the High Court in its appellate jurisdiction not hitherto enjoying the powers to take additional evidence under Section 428 of CRPC and to admit the video into evidence as a modern means under Article 164 of Q.S.O.? Did the Articles 4 and 10-A of the Constitution not recommend themselves to the Supreme Court, while handing down the judgment? Is it not the inalienable right of every citizen of Pakistan to enjoy the protection of law under Article 4? Is it not the fundamental right enshrined in Article 10-A that mandates total absence of prejudice, bias, or partiality on the part of a judge? Were these grounds not sufficient per se for the SC to quash the conviction, not least when it passed highly critical remarks about the conduct of the judge? Is the jurisprudence surrounding Article 184(3) of the Constitution not self-evident? Was it not for the Supreme Court to invoke Article 187 of the Constitution to do complete justice in the cause célèbre of Panama? Why were Muhammad Arshad Malik and others not summoned and confronted by this video? Does this judgment not tie the hands of the Islamabad High Court? Why did the Supreme Court feel called to dwell upon the admissibility and inadmissibility of a video and to formulate a list of principles in this regard? Did the SC invoke its advisory jurisdiction under Article 186 of the Constitution in the instant judgment? Would the High Court not be influenced by these remarks?
72 years have gone by and we have been stumbling from one controversial judgment to another. Every time, a claim is put forward that the genie of the doctrine of necessity has been successfully shut in a bottle, it comes out shattering it. Every time, the notion of independence of judiciary seems as elusive as ever. Every time, the people of Pakistan in general, and the lawyers in particular, hang their heads in shame. Starting from Maulvi Tamizuddin case to the Panama case to the latest video scandal case, every judgment made in these cases left indelible marks on the constitutional jurisprudence of Pakistan, undermining the confidence of the general public in the administration of justice and in the superior judiciary.