Hard cases
16 January, 2012
By Babar Sattar
Is the NRO Implementation case really a hard case? Do courts not hear contempt cases almost on a daily basis where they simply determine whether or not a party is in breach of a binding court order and where such party is found to have committed contempt it is punished in accordance with the law (unless it furnishes an unconditional apology and the court accepts it)? Does a contempt issue become legally complex and get transformed into a hard case because implementation of the binding court order can affect the person of the president and the alleged contempt is being committed by the prime minister? Isn't legal equality the foundational principle of rule of law? Do courts have the discretion of electing whether or not to enforce settled law in view of the political consequences that are likely to follow?
There are two schools of thought criticising the interim NRO Implementation Order passed by the Supreme Court this past week: the "legal purists" and the "consequentialists." And within consequentialists, at one end of the spectrum are those supporting legal purists, not for their appreciation of legal principles and the jurisprudence being produced by the apex court, but because they hope that the court will somehow ease the Zardari-Gillani duo out of power. At the other end of the consequentialist spectrum are those who wish for the Supreme Court to elect the sixth option in its interim order – i.e., do nothing and leave it to the people to judge those who refuse to abide by the law and court verdicts – as they believe the court is guilty of usurping executive authority, dispensing selective justice and ultimately becoming an instrument of regime change.
Let us start with the legal purists who disagree with both sets of consequentialists identified above. There are at least four legal arguments available to critique the interim NRO Implementation Order. One, the court seems to have expanded the subject matter pending before it. Instead of addressing the issue of whether or not the government is in breach of the NRO judgment and punishing delinquents for contempt of court, it has brought into play issues that seem extraneous to contempt proceedings (such as whether the prime minister and the president are dishonest and liable to be disqualified for violating their oath of office). This expansion of the subject matter and the serious consequences the court has hinted at are giving rise to accusations that the court is on a witch-hunt aimed at triggering regime change.
Two, is the nature of discretion that judges have while adjudicating legal disputes such that they can take into account the political or social consequences of their decisions? While pleading cases should lawyers now also warn courts of the disagreeable social and political consequences that might follow if the law is upheld? Can a court refuse to uphold the death sentence awarded to Mumtaz Qadri on the sole ground that it might lead to social unrest or violence? Is there any significance of the NRO implementation case other than the fact that it involves the person of the president and the prime minister? Is the involvement of top public-office holders of any legal relevance other than that if the head of the state and the government ridicule the law, why would others not follow suit?
So one the one hand is the matter of principle that law ought to be applied without considerations of fear or favour. On the other is the consideration of policy that if the prime minister is convicted for contempt it could lead to political unrest and machinations as parliament will need to elect a new prime minister. Can the courts subject matters of principle to considerations of policy? Granted that judges are human and the socio-political currents of the times are likely to influence their thinking and policy positions. But are judicial codes of conduct not meant to keep them secluded from transient social and political influences? As a jurisprudential matter, are the social and political consequences of enforcing the law not a consideration completely irrelevant and impermissible in determining what the law is and how it should be enforced?
Three, the reasoning of the court in the interim NRO Implementation Order seems subjective and the link created between breach of court verdict, amounting to violation of the Constitution and infidelity to the oath of office, leading to the prima facie finding of dishonesty, and a ground of disqualification from parliament, is tenuous at best. Expansion of the scope of fundamental rights in recent times is a welcome development. But interpreting all provisions of the Constitution in such broad terms that the written text of our fundamental law begins to lose its meaning is disconcerting. Even where fundamental rights are involved there is need to lay down objective eligibility criteria and tests that must be satisfied to attract judicial scrutiny of executive actions. And the level of scrutiny should then depend on the nature of right in question and whether the petitioner belongs to a vulnerable group within the society.
And, four, the Supreme Court is the highest court of the land and its decisions establish precedents that are also binding on lower courts. What kind of a precedent has the interim NRO Implementation Order set? Should courts proactively contrive alternatives and negotiate and debate them with those in breach of court verdicts? Can executing courts opt to do nothing when implementing binding court verdicts if the mighty in the society or the government refuse to abide by judicial decisions? Does the court exist to protect the rights of the people or are the people meant to take the law in their own hands and become implementing agents of court orders where the court itself throws its hand up? Is there any legal or constitutional argument that can justify option six posited by the court? If judges of the apex court agree not to enforce the binding decision of a 17-member bench, would that not be a breach of their own constitutional oaths?
Those who argue that we are caught in an either/or situation and must choose between one of the two public goods – rule or law and democracy – are mistaken. Rule of law and democracy are twin-values comprising the larger concept of constitutionalism and they neither compete nor contradict one another. Both sets of consequentialits – those mad at the court for not sending the Zardari-Gillani duo to the gallows without further ado, and those mad at the court for adjudicating matters related to the PPP leadership that result in exposing their murky deeds, weakening the ruling civilian government and entrenching the perception that all politicians are corrupt – are neither really rooting for democracy nor rule of law. They are wrong for their assessment of judicial verdicts rests on the political consequences these verdicts are likely to produce.
It is about time we learnt from our pitiful history that an elected civilian government deriding judicial authority and mocking court verdicts doesn't serve the cause of democracy, and a court issuing verdicts laced in moral outrage while being blind to the limits of its authority on the one hand, and seen as dispensing selective justice producing political consequences on the other, doesn't further the cause of rule of law. There can be no excuse or justification for an elected government to refuse to abide by court verdicts. But more alarming is a social, political and legal order that acquiesces in disobedience of the law. The government's intransigence on the NRO verdict, the Supreme Court's sixth option, and 38 percent of the people of Pakistan who seem to feel that the judiciary is exceeding its authority (according to the latest Gallup poll), all suggest that the moral authority of law itself and its arbiters is fast eroding in Pakistan.
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