The Supreme Court’s detailed verdict, finally delivered almost two weeks after they gave a short opinion, is not likely to clear up any confusion about the legality of the contempt case against the Prime Minister or the Court’s desire to re-open money laundering cases in Swiss courts. If anything, the Court’s detailed verdict leaves more questions than it provides answers.
The Court readily admits that they were biased against the Prime Minister from the start. In Paragraph 27, the justices admit that they had already formed an opinion about the outcome of the case before arguments even began, but dismissed counsel’s argument that this deprived the Prime Minister of his right to a fair trial because they claim the opinion was “tentative”. The hearings were not to determine the Prime Minister’s guilt or innocence, but to give the Prime Minister an opportunity to change the justice’s pre-determined opinion. In other words, the Prime Minister was never given a trial at all. The court skipped straight to appeal.
Even this appeal, though, is questionable. According to Paragraph 47 of the detailed verdict, the prosecution concluded by submitting “that the evidence on record does not establish the charge of contempt” against the Prime Minister. This begs the question if the prosecution and the defence both submitted that the evidence does not establish the charge of contempt, how did the Justices come to the conclusion that it did? Did the Court decide that the prosecutor wasn’t prosecuting well enough, so they decided to act as both prosecutor and judge? How could this possibly be considered as a fair trial in accordance with Article 10A of the Constitution?
The most important question that remains unanswered, however, is an old one, but one that the detailed verdict makes ever more glaring: If the Supreme Court truly believes that the President was involved in money laundering and kickbacks that illegally deprived the state of official funds, why don’t they take suo motu action and open a case themselves? Why do they need the Swiss at all?
The Court, of course, refuses to answer this question just as they refuse to answer the question of whether Article 248 grants the President immunity during his term in office. They refuse to answer the question because they know the answer and it isn’t what they want to hear – Article 248 obviously grants the President immunity during his term in office, so they can’t open a case themselves without violating the Constitution.
In Paragraph 40 of the detailed verdict, the seven-member Bench “is in no position to examine the plea” that the Constitution provides the protection of immunity to the President. Why not? They do not explain. Perhaps it is because the obvious conclusion to such an examination would undermine their cause? It is notable that the Honourable Court refuses, once again, to acknowledge what is plainly written in the Constitution.
The Court then goes on in Paragraph 41 to claim that they cannot accept the Prime Minister’s plea to delay the writing of the letter until the President’s term of office has expired and he no longer enjoys Constitutional protection. According to the Court, “this Bench has no power to modify the judgments and delay implementation”.
And yet the same Supreme Court has no problem issuing a string of extensions to the memogate commission. Why does it seem that the Honourable Court can find the power to modify judgements and delay implementation when it suits them, but not when it is inconvenient?
Could it be that because Article 248 presents such an obvious obstacle to the Court’s desired ends, they have cleverly decided to have someone else do the work and ordered the Federal Government to request Swiss authorities to open cases against the President for them? This, too, raises serious questions about the Court’s order.
In Paragraph 5 of the detailed verdict, the Supreme Court writes that “the status of civil party and the claim lodged to the allegedly laundered moneys lying in foreign countries including Switzerland are declared never to have been withdrawn”. If the withdrawal never happened, why, then, does the government need to write to request that the case be re-instated? Shouldn’t the Ministry of Law be able to write asking to be added back as a civil party to the case? Of course not, because the cases were originally opened by and closed by the Swiss courts, and regardless of what the Supreme Court of Pakistan demands, the cases will remain closed until the Swiss themselves choose to re-open them.
This is not the only inconsistency in the Supreme Court’s behaviour. In Paragraph 43, the Honourable Justices write:
43. Since complete facts of the case in Switzerland are not before us, we are in no position to form a definite opinion about its status when the claim was withdrawn nor indeed are we competent to give our own findings on the case, even for the limited purpose of determining the question of immunity.
But later, in Paragraph 56, the Supreme Court states that it does not believe the case was closed by the Swiss authorities on merits.
We, therefore, entertain serious doubts regarding the claim that the case in Switzerland was closed on merits.
Here again, the Supreme Court’s decisions seem to be based not on a consistent application of law and reason, but on what it most convenient to the outcome that they seek – even if it means contradicting themselves in the same order.
This brings us to the next problem with the Supreme Court’s approach. In Paragraph 7 of the detailed verdict, the Supreme Court makes clear that it is instructing the Federal Government to write to Swiss authorities requesting to be made a civil party to a money laundering suit “keeping in view the relations in between the sovereign States and by following the procedure adopted earlier.”
The Supreme Court can find that the previous letter requesting withdrawal as a civil party to the case was in error, but writing a new letter to foreign authorities requesting that a case be opened against a Pakistani citizen is an enforcement action which falls under the purview of the federal government alone – not the judiciary. Otherwise, why don’t the justices simply write to the Swiss and re-open the cases themselves? Because they can’t, and they know it. They don’t have the constitutional authority to do so any more than they have the constitutional authority to open cases against the President themselves.
The Court argues that Article 190 requires authorities to act in aid of the Supreme Court, but basic common sense tells us that even this power only applies to orders that fall within the Supreme Court’s constitutional authority. If the Supreme Court can compel the Prime Minister to write a letter, can they also compel him to bring them chai-samosa? Can the Chief Justice order the Law Minister to wash his car? Will he be found in contempt if the windows are not clean enough?
Interestingly, the argument about whether the Court must be obeyed at all costs is addressed by the Honourable Justices in Paragraph 63, in which the Court poses an interesting hypothetical:
This argument, if accepted, would set a dangerous precedent and anyone would then successfully flout the orders of the Courts by pleading that according to his interpretation they are not in accord with the law.
But the inverse of this is also a dangerous precedent – a vindictive or biased Judge could successfully flout the clear and unambiguous language of the Constitution by issuing an order that was clearly unconstitutional and then demanding that its authority cannot be questioned. According to the Court, “interpretation of the law is the exclusive domain of the judiciary”. Likewise, external affairs with other countries “including the surrender of criminals and accused persons to Governments outside Pakistan” is the exclusive domain of Parliament according to the Federal Legislative List. The Court has no authority to request cases against Pakistani citizens be opened in foreign courts.
The Supreme Court spends page after page after page describing in detail the past actions of government officials that frustrated their purpose – having a letter delivered to the Swiss requesting that a case be opened against the President. But all of this is irrelevant. If the justices don’t have the authority to open foreign cases, neither do they have the authority to direct someone else to do so. The decision of whether to write to the Swiss or not rests not with the Supreme Court, no matter how much they may wish it were so.