June 2012 will go down in the legal and political history of Pakistan as a watershed month as the Supreme Court (SC) of Pakistan intruded not only the domain of other state institutions and violated the code of conduct for the superior judiciary but also disregarded some of its own recent and not-so recent pronouncements.

It was the June 19 decision to disqualify Yousuf Raza Gilani as a member of the National Assembly (NA) and as Prime Minister of Pakistan that really stole the limelight. The decision, delivered through a short order which states that the reasons for disqualification will be recorded later, has been criticised on various grounds. The critics of the verdict variously call it legally infirm, an encroachment upon the domain of parliament and other constitutional offices, lacking impartiality and being potentially detrimental to democracy in Pakistan.

On the lack of impartiality first: while the decisions of a court may be debated and questioned, the judges should never lose the appearance of impartiality. In a 2006 speech during the Golden Jubilee celebrations of the SC, Justice Asif Saeed Khosa had said “… independence of judiciary is not an end in itself; it is only a means to the end, and the end for sure is impartiality of judiciary.” Unfortunately, the order for Gilani’s disqualification is a glaring example of the court’s transgression into the jurisdiction of other constitutional offices, if not outright bias.

Taking sides

A bit of history may explain how. Gilani was disqualified because he refused to write a letter directing Swiss authorities to reopen cases against President Asif Ali Zardari which had been withdrawn by the government under the National Reconciliation Ordinance (NRO). One relatively little known fact about those cases is that the then attorney general Malik Qayyum withdrew them in pursuance of a March 4, 2008 decision by the Sindh High Court. After hearing a constitutional petition (No 265 of 2008) by Zardari, the court ordered the federal government and the National Accountability Bureau (NAB) that, under the NRO 2007, they withdraw all cases pending against him within Pakistan and outside, specifically proceedings in Geneva and London.

It may be argued that the verdict was delivered by judges whose appointments or their act of taking oath under General (retd) Pervez Musharraf’s Provisional Constitution Order (PCO) of 2007 were declared unconstitutional. But the SC unambiguously gave protection to all the decisions that the so-called PCO judges – and those of the judges who were appointed after the imposition of the emergency – made between November 3, 2007 and July 31, 2009, when the SC sent them packing. The SC declared in its July 31, 2009 judgement (Sindh High Court Bar Association vs Federation of Pakistan) that the decisions made by the PCO judges were protected under the doctrine of “de facto exercise of power” as enunciated in the 1998 Malik Asad Ali case.

So when the SC ordered the revival of the cases against Zardari on the basis of infirm legal reasoning, it created the impression that there could be something other than legal and judicial procedures and processes at stake. Another reason why the SC appears partial in this case is because it has single-mindedly pursued the revival of cases which are acknowledged to have been instituted as part of a political witch-hunt in the first place. For at least one section of society, perhaps a minor one, the judiciary has become part of that same witch-hunt.

When on April 26, 2012, a seven-member SC bench found Gilani guilty of contempt of court, the verdict suggested that the conviction might entail his disqualification as a member of parliament under Article 63(1)(g) of the Constitution. Article 63(1) enumerates conditions under which a person is disqualified to be a parliamentarian. Under sub clause (g), first inserted by General Ziaul Haq in 1985, a person shall be disqualified from being a member of parliament if, among other things, “he has been convicted by a court of competent jurisdiction for propagating any opinion, or acting in any manner, prejudicial to … the integrity or independence of the judiciary of Pakistan, or which defames or brings into ridicule the judiciary…” The court in its order declared that Gilani, being prime minister of the country, had brought the court, and thus the judiciary, into ridicule as he had wilfully flouted the court’s order.

But the charge sheet against Gilani, on which the court based its verdict, did not include the charge of ridiculing the court. Nasar Ahmed, an SC lawyer, argues that the former prime minister was convicted for the offence of contempt of court defined and described in the Contempt of Court Ordinance, 2003, on the basis of his non-compliance of a court order. Whereas the offence of bringing “into ridicule the judiciary ofPakistan” as mentioned in Article 63(1)(g) is a separate and distinguishable offence. If it were not, why doesn’t Article 63(1)(g) simply state disqualification for contempt of court tending to bring into ridicule the judiciary of Pakistan, Ahmed argues.

Salman Akram Raja, another SC lawyer, argues that “ridicule is an ingredient of contempt”. Ahmed, however, disagrees. “Even if it is granted that ridicule is an element of contempt of which judicial notice could be taken, the court had to give the accused specific notice that his acts had the effect of ridiculing the judiciary, which was not done in this case.” It is a fundamental requirement of a fair criminal trial that the charge has to be clear and specific.

The court’s impartiality and credibility has also suffered on account of the fact that Gilani’s counsel Aitzaz Ahsan and the Attorney General of Pakistan, Irfan Qadir, both requested at the early stage of the case for the outgoing premier’s disqualification that a larger, not a smaller, bench was required to hear petitions that requested the court to implement the decision of the seven-member bench.

In another case heard by the SC in June, Chief Justice (CJ) Iftikhar Muhammad Chaudhry’s conduct appeared in conflict with the judges’ code of conduct and the order in the case looked like having gone against the court’s own pronouncements. The case – revolving around the allegations that Chaudhry’s son, Dr Arsalan Iftikhar, had reportedly taken money from the family of the real-estate tycoon Malik Riaz to influence the outcome of the court cases involving Bahria Town – was taken up by the CJ as a suo moto under Article 184(3) on June 6, 2012 “in response to a series of talk shows aired on the electronic media.”

That Chaudhry decided to preside over the bench hearing the case with a copy of the Holy Quran placed before him, knowing fully well that one of the parties was his own son, was in clear and obvious violation of the Code of Conduct for Judges of the SC and High Courts that the Supreme Judicial Council (SJC) notified in 2009. The relevant part of the code reads: “A Judge must decline resolutely to act in a case involving his own interest, including those of persons whom he regards and treats as near relatives or close friends”.

When the attorney general repeatedly reminded the court about the code of conduct, Chaudhry invoked Islamic history “when the holy personalities would judge their sons and daughters without fear”. But the CJ appeared to have forgotten that we have a Constitution and a code of conduct to follow in the judicial affairs and, more specifically, that he is no holy person.

Even though he later detached himself from the bench, it may be argued that the CJ had already violated the code and, therefore, could be charged with misconduct. As if that were not enough, he kept hearing cases involving Riaz for quite some time after the Arsalan case hearing, despite having an obvious conflict of interest.

Fundamental questions and doubts in the public mind regarding the Arsalan case are twofold: first, did the CJ’s son accept money and benefits from Riaz in the name of his father? Secondly, if so, did the CJ know about the transactions? The court could have tried to find answers to these fundamental questions by setting up a commission as it did in the memo case. Instead, it chose to sidetrack these questions, declaring that, generally, the court refrains from the exercise of its extraordinary inquisitorial powers and that the scope of the suo moto notice over Riaz’s allegations was to answer the question, of public importance, as to whether the SC or its judges have ever been involved in any such acts as alleged by him. “The matter of public importance in this case was the aspersion cast on the independence and integrity of the superior judiciary of this country,” the court pointed out. It then recorded that “a resourceful person such as Riaz has been forced to concede failure in his attempt to compromise the integrity and independence of the judiciary, despite the alleged payment of 34 crore rupees.” This, said the court, “should clear all doubts on this score.”

The assertion that public concerns stand addressed because Riaz has admitted in writing that the court remained uninfluenced by his bribes does not appear to be based on ground reality. For one, Riaz continued to accuse the CJ of being cognisant of his son’s alleged misdeeds even after submitting a statement before the court to the contrary. Is this, then, a case of selective justice?

In the Arsalan case, the court has effectively given the CJ a clean chit even before a proper inquiry is held to answer the fundamental questions and doubts lurking in the public mind. What if NAB or any other investigating agency finds out that Arsalan did receive money from Riaz’s family? After the SC order, it will be difficult for anyone to demand further inquiry into the CJ’s probable role in the entire affair. This could well be in conflict with the court’s own judgement in the case. “We, as judges, should be the last people to draw premature conclusions which are required to be proved through evidence,” is how one part of the verdict reads. Yet, it effectively declares the CJ clean even before proper investigation has begun and evidence brought on record.

Islamabad-based lawyer Babar Sattar questions the SC’s application of double standards and calculated selectivity in cases of a similar nature, saying that the court’s assertion that it “usually refrains from exercising its inquisitorial powers under Article 184(3) isn’t backed by its record in the many corruption cases it has handled recently.” In an op-ed piece published in The News on June 16, 2012, he says when the SC “assumes supervisory jurisdiction and issues categorical directions and time frames for inquiries in other scandals,” why should it not do the same in Arsalan’s case? “Application of restraint in one case and activism in others without any significant distinction in the subject matter raises the question of whether the court is applying double standards,” he added.

It may, then, be contended that a judiciary, otherwise independent of the executive’s pressure, may not necessarily be impartial. And impartiality being the indispensable and essential condition for the judiciary’s independence as Khosa had mentioned in his speech, mere achievement of independence from the executive’s influence may not be good enough if the real objective remains illusive.

Dominating all domains

The three-member SC bench, led by Chaudhry, that disqualified Gilani on June 19, did so with retrospective effect — that he stands disqualified from the moment he was convicted on April 26, 2012. This is an action even more difficult to explain as it means that the court has effectively rendered redundant Article 63(2) of the Constitution – which authorises the speaker of the NA to decide whether the question of a parliamentarian’s disqualification has arisen – and Article 63(3), which vests in the Election Commission of Pakistan (ECP) the final authority to decide whether a member of parliament is disqualified.

By disqualifying Gilani there and then, the bench also went way beyond what the seven-member bench had said in its order on April 26, noting that “the findings and the conviction for contempt of court recorded above are likely to entail some serious consequences in terms of Article 63(1)(g) of the Constitution.” The seven judges could have directed the Speaker to send a reference for Gilani’s disqualification to ECP but they did not do so. Rather, they chose to leave it to the Speaker and then to ECP.

It is difficult to explain why the three-member bench in its order of June 19, instead of sending the case with observations and well-reasoned findings back to the Speaker, chose to assume the power to disqualify Gilani in violation of some earlier SC judgements. “When a matter is brought to the notice of the Speaker with reference to the disqualification of a member, he would have to apply his mind to the fact whether a question such as contemplated in Article 63(2) had arisen or not,” reads a 2005 judgement of the SC. The same judgement also points out that the Speaker “might be directed by the superior courts to make a reference where he had refused to do so.”

In another decision, delivered in 1995 in Pir Sabir Shah case, a 12-member SC bench declared, with a majority of seven to five, that the SC could not assume the jurisdiction of the Chief Election Commissioner as the final forum for resolving questions about the disqualification of the members of the parliament. This clearly means that the SC cannot order the ECP to just issue a parliamentarian’s disqualification notification without it having heard his or her case. By rejecting the option to order the Speaker to send the reference to the Commission and then allowing the ECP to carry out its own proceedings, the SC has left itself open to the criticism that it is transgressing its constitutionally-prescribed institutional limits.

This is, however, not the first time that the judiciary has seemingly intruded the domains of other institutions of the state in recent times. In the so-called PCO judges case, for instance, the SC found it necessary to substitute the powers of the SJC with its own by sending sitting judges home without a hearing at the SJC, thus acting contrary to the principle of natural justice that no one is to be condemned unheard.

The same trend manifested itself when the SC told the parliament to revise the process for the appointment of judges in superior courts, as given in the much celebrated 18th Amendment. Before the Amendment provided for two-tier mechanism for the appointment of judges – involving both the judiciary and parliament – appointments in superior courts were a closed-door affair with the CJ’s opinion being binding. Through its decisions, the court reversed the new scheme to put all power back in the hands of the judges, generally, and the CJ, in particular, a practice disliked and criticised worldwide.

Across the world, with a few exceptions, neither judicial appointments nor judicial accountability is in the hands of the judges. Former Australian judge Michael Kirby, well known for his remarkable contribution to the theoretical development of judicial independence, has argued that the executive and the legislature should have a role in the appointment and removal of judges. In an article titled Appointments to Final National Courts – Lessons from Charles Darwin, he wrote, “The provision for a democratic component to be included in the appointment of judges … has a doctrinal and political, as well as an historical, justification.”

The judiciary has also interfered in the executive’s domain on a number of occasions. For instance, in a petition filed by Fazal Kareem Butt, who sought an assurance from the federal government that it would not remove Chief of Army Staff General Ashfaq Parvez Kayani and Ahmed Shuja Pasha, former director general of the Inter-Services Intelligence, the court told the Attorney General to submit in writing an assurance from the federal government that it has no such plan.

Markandey Katju, a former judge of the Indian Supreme Court and a keen observer of Pakistani courts and their judgements, noted in a recent article carried in The Hindu newspaper, that judicial restraint by Pakistani judges is necessary “because, of the three organs of the state (legislature, executive and judiciary), it is only the judiciary which can determine the limits of jurisdiction of all the three organs.” He argues that “this great power must, therefore, be exercised by the judiciary with the utmost humility and self-restraint, otherwise the delicate balance of power in the constitution will be upset and there will be chaos”.

Ominous tidings

The third notable and relevant case heard in June is that of the report submitted by the memo probe commission. It was in the news around the same time Arsalan’s case was. In the memo case, as in many others such as Pakistan Steel Mills case, Reko Diq case, rental power plants case and other cases of corruption, the apex court had set up inquiry commissions and/or issued directions and time frames for inquiries.

For starters, it may be recalled that the mandate of the memo commission was “to ascertain the origin, authenticity and purpose of creating/drafting of Memo for delivering it to Chairman of the US Joint Chiefs of Staff Admiral Mike Mullen.” Clearly, the commission was not supposed to give a finding under Article 5 of the Constitution by determining anyone’s loyalty to the state. The commission failed to examine Husain Haqqani,Pakistan’s former ambassador toWashington, despite his repeated requests for examination through video link, a facility granted to Mansoor Ijaz, an American businessman and another respondent in the case. Yet, it not only concluded that the unsigned memo was authentic and authored by Haqqani but, going far beyond its mandate, also held him guilty for “acts of disloyalty” to Pakistan. Passing moral judgements without incriminating evidence can only damage reputations, both of individuals as well as the institutions they represent or have represented, but it certainly does not serve the cause of the rule of the law and justice.

That the SC has also been suspending those members of parliament that hold dual nationality, without referring their cases to parliament and the ECP, is another worrying development for anyone who cares about democracy and constitutionalism in Pakistan. This leaves the door wide open for anyone to accuse any member of parliament under article 63(1)(g), for example, of propagating any opinion, prejudicial to the ideology of Pakistan, or the sovereignty, integrity or security of Pakistan, or morality, or for acts which defame or bring into ridicule the armed forces. The judiciary can then take suo moto notice of those accusations, wielding the nuclear option to cull ‘undesirable’ elements from parliament. It is such serious prospects that have led Katju to remark that the SC has “gone berserk”.

Asad Jamal is a lawyer based in Lahore