The judgment has arrived, but where is the decision?
It took the honourable lords twenty six thousand pages of evidence to conclude the proof is insufficient. It took them over five months to reach an equivocal verdict. If the uniform of the jurists is any indication, justice may only be black or white. It may not be grey
Justice, Plato observed, is a manifestation of ‘what resides in the hearts and souls of citizens’. In William Lloyd Garrison’s America, it was ‘uncompromising’; In D H Lawrence’s England, it was ‘unwavering’; In Cesare Beccaria’s Italy, it was ‘unifying’. For some it is ‘mercy’, for others ‘revenge and retribution’. It may also be ‘impartial’, ‘equal’ or ‘fair’, depending on whom you may ask. In Justice Asif Saeed Khosa’s Pakistan, it is ‘selective’.
In the contempt of court verdict against the erstwhile Prime Minister Gillani, respected Justice Khosa had written, ‘Pity the nation that punishes its weak and poor but is shy of bringing its high and mighty to book; pity the nation that clamors for equality before law but has selective justice close to its heart’. And pitying he must be, as three noble lords penned their disagreement to his call for uncompromising and unwavering justice.
Pakistan nurtures two distinct and antithetical systems of justice corresponding to Thucydides’ averment, ‘the strong do what they have to do and the weak accept what they have to accept’.Sections 119, 161 or 166 of Pakistan Penal Code, are the representation of one type – ‘innocent until proven guilty’. Section 9 (read with Section 14) of the NAB Ordinance is the illustration of the other – ‘burden of proof is upon the accused’. While the former is reserved for the mighty, the latter is for the weak.
Our fault lies in our acquiescence to this model. Khalil Gibran had asserted, ‘So, the wrong-doer cannot do wrong without the hidden will of you all’. It, thus, does not come as a surprise that justice in the country is ‘expedient’. It is only reasonable then that the nation, ‘pays little heed to truth, righteousness and accountability’. The rot is entrenched; the rot is ubiquitous.
It took the honourable lords twenty six thousand pages of evidence to conclude the proof is insufficient. It took them over five months to reach an equivocal verdict. If the uniform of the jurists is any indication, justice may only be black or white. It may not be grey. The skeptics, therefore, would not be wrong in inquiring if the lords, who have spent a lifetime mastering the linguistic skills, are capable of such ironic verbiage. The elegists may declare it a treatise of nothingness, personifying the incapacity of justice.
Is it not ironic that, in the very same paragraph of the short order, chairman NAB has been lambasted and his subservient made a part of the Joint Investigation Team (JIT)? Is it not comical that the JIT has been given almost the same amount of time to conclude its investigation, as the honourable lords took to scribble their findings? Is it not cunning that the idealists have been reduced to incongruence of their own arguments? If the court should be fair, so should be every other department. If confidence can be demonstrated in the superior judiciary, so should it be in the JIT formed by it.
And so we are asked to believe that what the wisest of lords could not decipher in hundred and seventy days, the JIT would be able to do in sixty. And so we are required to accede to yet another juggle of files, this time right out of the Court Room Number One and into the precincts of Federal Investigation Agency. And so it is suggested that, what the Supreme Court in its ascendance and command could not dig out, the JIT being led by a grade twenty official would be able to establish.
Never ever did a judgment bring joy to both the petitioner and the respondent. Every verdict, till now, pronounced a winner, every verdict, till now, vilified a villain. Panamagate judgment transcended the winner/loser binary by giving something to both
The perceptive lords have demonstrated their faith in a JIT consisting of representatives from six institutions; five of which have nexus with the office of the prime minister. One is reminded of the Supreme Court’s anxiety when hearing the ‘maid abuse case’, requiring that the investigation against a serving Additional Session Judge be moved to High Court or a different trial court, to ensure transparency. The cynics could validly ask if the standards have changed, or the motives.
It was professed that the judgment would be remembered for decades to come. If the two had been three, perhaps yes. Indeed, that would have been a rare triumphant moment for the idealists. In the future of the ‘majority view’ – beset with pragmatism and expedience – this decree is the ‘pitiable’, but ‘cherished mundane’, that Justice Khosa had lamented against. Had the majority out rightly dismissed the petitions it would still have been acceptable, but to leave it in the grey zone: what insincerity! The annals of history may still record it, but because of the dissenting note encompassing the progressive aspect.
If this judgment is remarkable or rare, it is so in its equivocalness; all involved in the process took to celebrations. Justice rarely ever provides such ends. The idealists hope the investigation would culminate in two months, and they shall reap what they seek. The pragmatists know the investigations seldom culminate, and if they do, the consequences are never borne.
One reminisces, yet again, Justice Khosa’s remarks – ‘pity the nation that is led by those who laugh at the law, little realising that the law shall have the last laugh’, and wonders if the pragmatists would have laughed their way back home at such idealism. One wonders, if law would indeed have the last laugh!
Had the intent been to conclude the matter, the investigation could have been ensured during the pendency of the case. If condemnation was the purpose, the dissenting notes would have sufficed. It took the court five hundred and forty nine pages to declare their uncertainty about the crimes of Prime Minister Sharif. It had taken them seventy seven to condemn Prime Minister Gillani.
In the latter judgment, Justice Khosa had pronounced his belief that the judgment ‘kindles a flame of hope for a future for our nation which may establish a just and fair order, an order wherein the law rules and all citizens are equal before the law’.
Three against two, the flame of hope may just be flickering a little too wildly for comfort. Three against two, the hope seems diminishing.
Never ever did a judgment bring joy to both the petitioner and the respondent. Every verdict, till now, pronounced a winner, every verdict, till now, vilified a villain. Panamagate judgment transcended the winner/loser binary by giving something to both. Their lordships, however, while at it initiated the infamous game called, ‘From Bench to Special Bench’ with Joint Investigation Team thrown in the mix. All them souls, on both sides of the aisle, who waited for something mighty, something historic, and something groundbreaking, got something feeble, something insignificant, and something not-so-groundbreaking on 20 April 2017.
Every man jack who dons a black coat, every black coat that gets a chance to wear the robes and hold a gavel knows by heart the oft-repeated, hackneyed maxim; Justice should not only be done, it should also seen to be done. What to make of this maxim and where to find this maxim is a task better left to intellect and understanding of an individual.
The House of Sharif roped in the biggest and the brightest litigators to fight their hardest battle yet. If we put the joint standing of all three counsels of PML-N — Makhdoom Ali Khan, Salman Akram Raja and Shahid Hamid — together, the years will barely fall short of a century. The question that begs an answer is: What that century of legal acumen brought to the PM? Or his sons? May be for folks like them it is said that none so blind as those who refuse to see.
Justice eludes us. Law ensnares us. Our tomes of legal wisdom silently gather dust. Pangs from horrible past happenings remind us of verdicts that slayed all lofty ideals from above, all beautiful things down here. We look around sans blinking at the chequered past of those who’ve vowed to protect our rights, who’ve told us to forget the black clouds and focus solely on the silver linings, and those who were turned into demigods by us. Some among us had realised long ago that not all clouds have a silver lining and some demigods are demons incarnate.
Honorable Justice Asif Saeed Khosa started the Panama judgment by quoting an epigraph attributed to Honoré de Balzac from Mario Puzo’s novel ‘The Godfather’. Previously, Justice Khosa quoted Khalil Jibran, rather amply, in his note on Yousaf Raza Gillani’s contempt verdict. It seems befitting to conclude this feature on a literary quote or a couplet. So, dearest sirs and ma’ams, bask in the eternal wisdom hidden in the final stanza of TS Eliot’s ‘The Hollow Men’.
This is the way the world ends
This is the way the world ends
This is the way the world ends
Not with a bang but a whimper.
And with an apology to Khalil Jibran and with reference to the present judgment. Savour the lines below as well.
Pity the nation
Pity the nation that has judgments and not decisions
Pity the nation that neither had a bang, nor a whimper
This was co-authored by Badar Iqbal Chaudhary and Shah Nawaz Mohal
Badar Iqbal Chaudhary is an Advocate High Court; Shah Nawaz Mohal is a law graduate and member of staff, Islamabad Bureau
