Respect for Judiciary must be earned, not enforced

A lot of people have opinions about certain Articles of the Constitution, most of them not Constitutional scholars. That’s okay. It is a democracy and we are allowed to have our own opinions and honestly some of those with the most letters behind their name sometimes make the least sense. Most of the debate has been about Article 248 and whether its granting of immunity to the President requires interpretation. There is another Article of the Constitution that is equally controversial, though, and grants an even broader form of immunity but has not received the same level of scrutiny as Article 248, though it has, one can argue, had even greater effect on the government.

When the Prime Minister explained that the Law Ministry advised him that the president enjoys blanket immunity during his term in office under Article 248, Zardari haters in the media asked if this meant the president had ‘licence to kill’. More reasonable people suggested that being unambiguous does not make Article 248 uncontroversial.

Though the Constitution allows for immunity of a sitting head of state, the Court may want to reexamine this practice by looking to how this immunity violates other constitutional protections. However, the Court should defer to the elected branches and temper its activism to instances where the most fundamental constitutional rights are at risk.

After months of controversy and court orders, though, questions about Article 248 remain conveniently unanswered. Ironically, despite all the attention to Article 248, it was actually Article 204 that cost the Prime Minister his office.

Article 204 reads as follows:

204 Contempt of Court.
(1) In this Article, “Court” means the Supreme Court or a High Court.
(2) A Court shall have power to punish any person who,
(a) abuses, interferes with or obstructs the process of the Court in any way or disobeys any order of the Court;
(b) scandalizes the Court or otherwise does anything which tends to bring the Court or a Judge of the Court into hatred, ridicule or contempt;
(c) does anything which tends to prejudice the determination of a matter pending before the Court; or
(d) does any other thing which, by law, constitutes contempt of the Court.
(3) The exercise of the power conferred on a Court by this Article may be regulated by law and, subject to law, by rules made by the Court.

Let us, for the sake of argument, examine this article with the same logic used by opponents of the present government. If the Court can punish any person who disobeys any order of the Court, does that mean that Chief Justice can order the President to kill?

Okay, that was fun. But now for the sake of reason, let’s think about just how ambiguous Article 204 really is and whether such broad language is actually bad for the Court.

First, this article raises serious problems for separation of powers. Parliament is tasked with writing laws, the judiciary with interpreting them, and the executive with enforcing them. If one branch can compel another to do what it wants, though, then it creates redundancy. Why bother with an executive if the judiciary has the power to enforce its own decisions?

This might sound strange at first, but an important part of governing is prioritising. The Court will have certain priorities and these are reflected in the cases the Court chooses to take notice of. The executive has its own priorities, which may not be 100 per cent identical to the Court. These are reflected in its enforcement decisions. By separating these powers into two independent institutions, we make sure that no one institution has too much power.

It’s interesting that we come to the issue of power consolidation, because there is something of this reflected in 204(2)(b). Dictators – the greatest power consolidators of all – are infamous for demanding unquestioning fealty to their decisions. But there’s a difference between unquestioning fealty and credibility. People don’t respect dictators, they fear them. That won’t do for a court.

Some decisions of the Court will be controversial. If there was no controversy, there would be no need for a Court in the first place. But respect for the judiciary is not gained by threat of punishment, it is gained by providing well reasoned explanations for its decisions.

The former Prime Minister repeatedly said, “I respect the Court”. He appeared when called, he gave his arguments, and the Court punished him for ridicule – something the Prime Minister never did. Media are afraid to criticise the Court because the Chief Justice has sent a loud signal that he takes a very broad interpretation of Article 204 and that he will not hesitate to use it against even the most powerful if he doesn’t like what they have to say, and an army of black coats roam the streets threatening to enforce his rule.

By wielding the threat of contempt power so loosely, the Supreme Court may be asserting itself among institutions that have abused it in the past, but their Lordships should be careful that they do not become that which they aspire against – an institution seen as acting on politics and not principles, and thereby bringing the Court or a Judge of the Court into hatred, ridicule or contempt in the eyes of the public.

A Dangerous Precedent

PM Gilani

The Supreme Court’s decision to formally indict the Prime Minister on charges of contempt on Monday revolves around the question of presidential immunity outlined in Article 248 of the constitution, and yet this important fact seems to have been all but ignored in the discussion of charges against the PM as the court and the media prefer to discussion whether or not the PM is disobeying the court’s order. Before a decision can be made on the wisdom of not writing the court’s desired letter, though, a thorough review of the Supreme Court’s order to write the letter must be undertaken.

When the government responded to the court’s order by explaining that Article 248 prevented them from pursuing cases against the president while he is in office, the first argument that the president’s opponents made was that he only enjoyed “qualified immunity” for actions taken in the course of his official duties. Article 248 seems pretty clear about granting the president absolute immunity, though – “No criminal proceedings whatsoever shall be instituted or continued against the President or a Governor in any court during his term of office.” Opponents then changed their argument to say that the constitution gives him immunity in Pakistan, but not in foreign courts. Of course, this is wrong, too. Article 248 says very plainly “in any court”, not “any Pakistani court”. This then moved the Chief Justice to make the bizarre claim that the president can’t claim immunity based on what the constitution says, that he has to come and beg His Lordship to grant it. Zardari haters then began claiming that Article 248 required “interpretation”.

Justice Ali Nawaz Chowhan, an International Judge of the United Nations at The Hague, Permanent Judge of the Lahore High Court, a visiting Professor and Co-Chairman of Unesco Appeal (Judicial) Board has explained that such a suggestion is prima facie silly – the language of the constitution is plain and does not require interpretation.

Despite the plain language of the constitution, the Chief Justice has ordered the Prime Minister to write a letter to the Swiss authorities requesting that corruption cases be opened against the president – an act that is clearly against the constitution. This puts the PM in a ‘damned if you do, damned if you don’t’ situation.

Rather than disobey the constitution, the PM is following the recommendation of his legal advisors and not writing the letter. For disobeying the Court’s order, he has been charged with contempt. The Prime Minister said that if he is convicted, he will follow the law and step down. Reportedly the government has already prepared for this scenario.

Not so fast.

Article 248 has been widely discussed as the reason why the PM can’t write the letter to the Swiss authorities, but what hasn’t been discussed is the issue of “qualified immunity” for the Prime Minister himself.

Section 1 of Article 248 says:

The President, a Governor, the Prime Minister, a Federal Minister, a Minister of State, the Chief Minister and a Provincial Minister shall not he answerable to any court for the exercise of powers and performance of functions of their respective offices or for any act done or purported to be done in the exercise of those powers and performance of those functions

It names the Prime Minister specifically, and grants him qualified immunity for acts and performance of his office. This is not the same as the complete immunity granted to the president in Sections 2, 3, and 4 – it is the normal immunity granted to government officials that allows them to do their jobs without having the second-guess every act they take. What does that have to do with this case?

If the Supreme Court decides to punish the Prime Minister for not carrying out an order that the law ministry advised was unconstitutional, they will be in violation of Section 1 of Article 248. More worrisome, the court will be setting a dangerous precedent – no longer will government officials be able to rely on the plain language of the law nor the advice of their legal counsel. Every decision taken will have to first be cleared by the Supreme Court, otherwise the officials will never know if any action will result in them being hauled to dock and packed off to jail. That’s not what is supposed to happen in a court of law, that’s what happens in a royal court.