Ijaz Hussain: Unattended issues of SC judgement

Unattended issues of SC judgement —Ijaz Hussain

If courts are not in a position to refuse cases that are essentially political in character, litigants can certainly help them towards this end. They can do so by refraining from judicial recourse for settlement of their political scores

The Supreme Court judgement to ban the Sharif brothers from holding public office has evoked a variety of reactions. At least three stand out.

First, many commentators have criticised it as politically motivated. Nawaz Sharif has gone to the extent of calling it an edict issued by President Asif Zardari.

Second, given the turmoil that has resulted from this judgement, the dismissal of the Punjab government and the imposition of Governor’s Rule, many have accused the Court of rendering a judgement without taking into consideration the serious consequences that it could have entailed. In their opinion, the Court should have been mindful of the fallout of its pronouncement and abstained from giving the kind of judgement that it gave.

Third, some commentators have expressed the view that the Court should not have entertained the case in the first place because it was political in character. In their view, political issues render the Court controversial which in turn reduces its effectiveness.

Are these strictures justified?

As to the question whether or not the decision was politically motivated, in the absence of hard evidence it is difficult to say anything. However, it does not signify that the Court was absolutely free from political manipulation. It only means that we do not have at this stage hard evidence to prove the charge. This is no different from certain past cases where similar allegations were levelled but no proof was forthcoming at that time though subsequently evidence emerged to confirm the charges.

One example is the Bhutto case where it was alleged that Zia-ul Haq influenced the Court, but there was no hard evidence to prove it. However, not long ago Justice Nasim Hasan Shah, who sat on the bench hearing the case, confessed to having voted for Bhutto’s hanging because of government pressure. Another example is the Tamizuddin Khan case where it was alleged that the Governor-General Ghulam Muhammad influenced the judges but no evidence was available to prove it. However, years later Qudratullah Shahab, who was principal secretary to the Governor-General, revealed in Shahabnama that Ghulam Muhammad did influence Justice Munir.

In the present situation also, there is no hard evidence at this stage to prove that Zardari influenced the judges; yet there is considerable circumstantial evidence available in the matter. To begin with, the proceedings in the case were moving along gingerly. However, the Court one day suddenly decided to expedite them by ordering day-to-day hearings.

Secondly, it was hearing preliminary objections relating to the exclusion of PCO judges from the bench and the Sharif brothers’ lawyers’ locus standi to file appeals against the LHC’s order. The Sharif brothers’ lawyers had made it clear that they were yet to argue the case on merits, a position that the Court had accepted. However, inexplicably and out of the blue, it declared that it had heard the case on merits and gave the final judgement.

Third, the Court passed a short order as if it was in a great hurry. It should have opted for full judgement. Perhaps it did not do so because it would have been time-consuming.

How do we explain the Court’s behaviour?

A clue is provided by the date of the lawyers’ Long March which was getting closer and the fact that Sharif brothers were not only to participate in it but in the dreaded dharna as well. Additionally, the fact that the Punjab government was to facilitate movement of the enormous crowd was causing sleepless nights in President House. It was imperative to do something to stop the Sharif brothers in their tracks. Negotiations were, of course, the best way to do it, but they proved abortive.

The other option was to remove the PMLN government in Punjab and impose Governor’s Rule. For this purpose, a good excuse was needed, which the Court’s judgement duly provided. That explains why immediately after the announcement of the judgement, the Punjab government was dismissed and Governor’s Rule imposed.

Here, a word about the presence of PCO judges on the bench is in order. The Sharif brothers did not appear before the Court because they had refused to recognise the PCO judges as legitimate. Their lawyers had submitted an application asking for exclusion of PCO judges from the bench and for the constitution of a larger bench comprising non-PCO judges.

The court went ahead with the case without disposing of this application. Nor did it replace the PCO judges. This rendered the Court controversial. It would have been better had the CJ not appointed the PCO judges or the PCO judges had on their own refused to sit on the bench. That way, the Court’s judgement would have carried greater weight and its dignity, which had been badly shattered as result of the controversy surrounding the Dogar case, might have been salvaged. However, the CJ failed to seize the opportunity. That also explains why the charge of a politically motivated decision has stuck.

As to the question whether or not the court should have taken into consideration the possible consequences of the decision that it contemplated, it is almost as old as Pakistan. It arose for the first time in the Tamizuddin Khan case where CJ Munir endorsed Governor-General Ghulam Muhammad’s action to dissolve the Constituent Assembly for political reasons. At a function organised by the High Court Bar Association after his retirement, Munir justified the decision in favour of the government by arguing that, “there would have been chaos in the country and a revolution would have been formally enacted possibly by bloodshed,” which in his opinion would have been, “a far more serious situation than that created by the invalidation of whole legal system.” He subsequently applied the same rationale to justify Ayub Khan’s coup d’etat in the Dosso case.

This pragmatism signifies that courts are to decide cases keeping in mind extraneous factors rather the merits. Now this is a very dangerous notion because its acceptance would signal the death-knell for justice as the courts would decide cases on the basis of extralegal considerations. This would be utterly contrary to their duty, which is to adjudicate on the basis of law and law alone regardless of the consequences.

It is interesting to note that even CJ Munir, who pioneered the opportunistic thinking in Pakistan, in a saner moment took an utterly different view when he categorically stated: “I am quite clear in my mind that we are not concerned with consequences, however beneficial or disastrous they may be.” Consequently, the analysts who have criticised the Court for delivering a judgement without taking into account its fallout are utterly misguided in their criticism.

As to the question whether or not the Court should have refused to entertain the case on the ground that it had a political character, it has been raised on other occasions as well. However, a court does not refuse to entertain a case on the ground that the question asked is of a political nature; and that the matter should be settled politically. If it were to do so it would have to close shop and send judges home as a consequence.

The apex court’s 1997 judgement in the Mahmood Khan Achakzai case is relevant here. The court said that it could not be deterred from determining a question on the touchstone of the Constitution on the ground that it was political. Nor, in its opinion, could it adopt the “political question doctrine” for refusing to determine difficult and knotty problems as it would amount to abdication of judicial power, which it believed neither the Constitution nor the law permitted.

If courts are not in a position to refuse cases that are essentially political in character, litigants can certainly help them towards this end. They can do so by refraining from judicial recourse for settlement of their political scores; and by making honest and serious efforts to take care of their political disputes through political means. This would keep the judiciary from becoming controversial which in turn would strengthen it. However, given the highly polarised and fractured character of our society, one wonders if our politicians will ever heed this advice! (Daily Times)

The writer is a former dean of social sciences at the Quaid-i-Azam University. He can be reached at hussain_ijaz@hotmail.com