Apex court tells PM “après moi, le deluge” won’t work

The Contempt of Court Ordinance 2003 is in the news a lot. But the novelty is that the parties to the proceedings, about which we hear so much in the media, are the prime minister and the judiciary. Whoever is wrong or right, one thing is for certain: the law is sacrosanct and ought to be respected. But as Pakistanis, during our last six-and-a-half decades of “freedom”, we have become accustomed to seeing the overriding principles of democracy be compromised for the sake of a few rich and corrupt people.

In the present political climate, on the one hand, there is a feeling in the country that military rule will be re-established soon. Equally, on the other hand, loyalists of the PPP predict that they will win bigger in the next elections. I’d like to disagree with the idea that the imposition of martial law is inevitable. But after a detailed conversation with my old comrade Mr Sibghat Kadri Q.C., I reanalysed recent violent events (such as the killings of so many advocates in Karachi). Then I reread some recent supreme court judgments and orders: specifically Intra-Court Appeal No. 1 of 2012 (“the appeal”).

The appeal (Jawwad Khwaja J delivering the order of a bench of seven judges) traces its roots to the National Reconciliation Ordinance (NRO) – which was invalidated by the supreme court in December 2009 – and was aimed against the actions of the Prime Minister of Pakistan Mr Yousaf Raza Gillani (“the appellant/contemnor”) who resisted the January 2012 order of the supreme court, directing him to show cause, for not following the writ of the court as set out in the NRO Judgment: Dr. Mobashir Hassan & others v. Federation of Pakistan & others (PLD 2010 SC 265).

This post is concerned with the observations made by the supreme court in the appeal in relation to the transparency of institutions and respect for the rule of law. The clues for the country’s political future, moreover, as set out in the text of the order, are rather interesting and worth examining.

But prior to examining the “political” content of the order, it is worth noting that the supreme court was nothing less than dismissive of the appellant’s counsel Mr Aitzaz Ahsan’s reliance on Imran Ullah v. The Crown (1954 FC 123) and Cornelius J’s observation that the court could not exclude an advocate’s arguments until it was satisfied through a direct question that nothing further could be added to the substance of the case. At paragraph 13 of the order, Jawwad Khwaja J noted that in the Imran Ullah case Cornelius J was dealing with a criminal appeal from the Lahore High Court which had made a final ruling in the matter, whereas the appellant’s matter had yet to be determined. It was also explained to the appellant that, under section 3 of the Ordinance, a person could be named in proceedings for contempt of court if he disobeys or even disregards any order of a court which he is legally bound to obey.

The supreme court was at pains to point out to both the prime minister and his counsel that every effort would be made to afford the appellant/contemnor, Mr Gillani, a “fair hearing” as this was his right under Article 10A of Pakistan’s 1973 Constitution.

Jawwad Khwaja J explained that the case of Justice Hasnat Ahmad Khan v. Federation of Pakistan (PLD 2011 SC 680) had already established that where non-compliance of a court directive is not disputed, the court is, prima facie, justified in the satisfaction that the matter should proceed to trial.

The implementation of the NRO Judgment lies at the crux of the present confrontation between Pakistan’s executive leadership and the judicial authority. In that case, the supreme court ordered the prime minister to request the Swiss authorities to restart proceedings for alleged corruption – involving a sum of $60 million – connected to the present President of Pakistan Mr Asif Ali Zardari.

Following eminent British jurist Professor HLA Hart, the supreme court did not see itself as being bound to “the alternatives of the blind” when interpreting statutes and precedents and thus Jawwad Khwaja J and his brethren rejected any “‘mechanical deduction’ from rules with predetermined meaning.”

In part III of the order, entitled “The Constitutional Imperative”, the supreme court drew comparisons from  various jurisprudence (western and Islamic), literature and Islamic history to conclude that the prime minister was not entitled to any special privileges and at paragraph 19 it was made plain that

Therefore, even though we have no doubt that the appellant is a duly elected Prime Minister of the country and deserves respect, this Court cannot be expected to show any restraint and forbearance on account of his position.

It was also clarified by the court that both Prophet Muhammed (peace be upon him) and the second Caliph Hazrat Umar had warned the people that double standards in the law would lead the nascent Muslim Umma straight to disaster because such behaviour imperiled the objectives of free and fair governance. Pointing out that functionaries of the state such as the prime minister and the president act as fiduciaries of the people of Pakistan, the court also relied on the Persian poet Sheikh Saadi’s verse to make its point – “If the ruler plunders but five eggs, his minions will plunder a thousand roosters.” Very much in his element, Jawwad Khwaja J also noted that under Article 190 of the Constitution “all executive and judicial authorities throughout Pakistan shall act in aid of the Supreme Court.”

The supreme court emphasized that the nature of the fiduciary relationship coupled with the nature of the oaths of allegiance to the state reflected poorly upon the behaviour of the prime minister. This is where the text of the order, at paragraphs 33 to 34, becomes very interesting and might provide us with clues for the future of Pakistan because the court did make an oblique argument that when civilian authority no longer heeds the ambit of its power and acts in contravention to the duties of its office, then the armed forces must step in (emphasis supplied, perhaps there’s some latent “doctrine of necessity” in what the supreme court said):

33. The Prime Minister’s mandate is circumscribed by Art 90 of the Constitution, which permits him to exercise, in conjunction with various other constitutional functionaries, “the executive authority of the Federation”. This exercise of authority is however, “[s]ubject to the Constitution” as expressly stated in the proviso to Art 90 (1). In the same light, Judges are required to make an oath to the effect that they will discharge their duties “in accordance with the Constitution…and the law”. In fact, this part of the oath is common to the oath of every single functionary for whom the Third Schedule prescribes an oath; one of these oaths which puts the point most clearly requires that such functionary will “uphold the Constitution of the Islamic Republic of Pakistan which embodies the will of the people.” (Oath of Members of the Armed Forces, Third Schedule, Constitution)

34. It is thus clear that our Constitutional Order is founded on the fundamental instruction that each organ must give effect to and act in accordance with the Constitution. Insofar as an act of any one of the organs of the state travels beyond the limits laid down in the Constitution, the said organ can be said to have strayed from representing “the will of the people of Pakistan.”

Finally, Jawwad Khwaja J cogently ruled that the harmful attitude of “après moi, le déluge” won’t work in an system where the collective interests of Pakistan were at odds with the individual interests of the political elite and their cronies because the former trumped the latter.

We started this discussion with my conversation with Mr Kadri Q.C. and it would be appropriate to end it with the UK’s jurisdiction. That country’s supreme court recently ruled – in a terrorism related case which is known as W (Algeria) (FC) & Ors [2012] UKSC 8 – that despite the risks posed to national security and diplomatic ties of the United Kingodm, the Special Immigration Appeals Commission (which has heard the cases of notorious criminals such as Abu Qatada and Abu Hamza), could make an irreversible and absolute order which precluded the British home secretary from disclosing information (which was used in a terrorist’s trial in the UK) about the source to another country. No doubt in the mother jurisdiction of the common law, the home secretary, one of the four great ministers of the British state, will obey the court’s order.

We think that Jawwad Khwaja J and his brethren will ask Pakistan’s political elite to draw a salutary lesson from our former colonial masters and the legal system which they bestowed upon us.

Watching the funerals of two members of the Mutthida Quami Movement who were murdered in cold blood in Azizabad by terrorists today we could only reflect on what my friend Mr Kadri had argued: the people destabilizing Karachi and Pakistan today want to create circumstances which make it necessary for the armed forces to take control.

The text of Intra-Court Appeal No. 1 of 2012 is available below

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