Detailed Verdict Leaves More Questions Than Answers

Chief Justice Iftikhar ChaudhryThe 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.

Chief Justice Awards Himself

Chief Justice Iftikhar Chaudhry Gives Himself Award

The Chief Justice will be traveling to London next month to receive the prestigious International Jurist Award 2012, media reported over the weekend. While this recognition is being lauded in the media, it seems that there might be more to the story than has been reported.

No doubt the International Jurist Award 2012 is something of a relief for the Chief Justice after being the subject of a rather unflattering report by another international organisation, the International Commission of Jurists (ICJ). The ICJ report questioned whether the Chief Justice had crossed the line of his constitutional role as jurist and was attempting to influence the direction of policy – the latter being the proper role of parliament, not the court.

Actually, the ICJ’s findings were similar to those of another report released late last year, this one by the independent Human Rights Commission of Pakistan (HRCP). Dr Mohammad Taqi describes the HCRP’s findings as follows:

The HRCP seems to be of the opinion that the superior judiciary’s overzealous use of the suo motu powers as well as entertaining petitions by the so-called interested parties— the definition of remains nebulous and ever-expanding— has taken up time and energy of the courts to the detriment of other cases. In addition to— and often at the expense of— its normal function as the court of appeal, “the country’s apex judicial forum was also functioning as an ombudsman’s office, as an administrative court, as an anti-corruption tribunal, as a supreme investigation agency, and as the sole defender of not only the constitution but also of public morality”. In a country where the backlog of cases is to the tune of millions, by seizing itself with issues cherry-picked from or by the media or thrown in its lap for political reasons, the Supreme Court has clearly spread itself too thin.

After receiving such reviews by independent international legal organisations, finally having his work praised by an international legal organisation must be quite comforting to the Chief Justice. This award has certainly pleased the media as well as certain opposition politicians who are cheer leading for the Chief Justice in his decisions against the government. After storming the Supreme Court in 1997 during his own contempt case, Nawaz Sharif has become the Chief Justice’s most loyal servant. Even PTI’s Jahangir Tareen who only a few years ago was defending Gen. Musharraf’s attacks against the Chief Justice has had a change of heart now that the Chief Justice is attacking his political rivals.

There is, of course, one difference between the international legal organisations that are criticising the Chief Justice and the one that is granting him an award next month. That difference being that the Chief Justice himself is Vice-President of the organisation giving him the award.

It’s rather ironic, one must admit, that for all his talk about the importance of an independent judiciary, the Chief Justice is going to accept an award from an organisation that he himself sits as Vice-President. I will leave it to you, dear reader, to interpret this irony for yourself. As for me, I think that until the common man can get justice, perhaps the Chief Justice should be a little more humble about whether he deserves any awards – especially when they’re handed out by his own organisation.

Contempt in a tea cup

PM Gilani at Supreme Court

A conviction of contempt was entered against the nation’s longest serving Prime Minister in history Yousuf Raza Gilani today. In a telling manner, the Court sentenced the PM till the rising of the Court only – in other words about 30 seconds. Many believe this was an attempt by the Court to save face after finding itself backed into a corner. Whatever your opinion about the Court’s decision, though, the events of today are a further sign that a strong and mature democracy is taking firm root.

The day before the Court convened to deliver its verdict, the Prime Minister gave a statement that received surprisingly little notice, though actually it was quite meaningful.

Gilani said he had always honoured the decisions of the court and fully respects its verdicts. He said the Supreme Court has summoned him for the third time and if any other cabinet colleague wishes to accompany him, he was welcome.

And, in fact, this is exactly what he did. The Prime Minister appeared before the Court humbly and respectfully. He continued to defend his innocence in the matter, but he submitted to the Court’s verdict and has followed through on his pledge taken earlier this year not to seek a presidential pardon.

Compare this with governments of the past who, facing the wrath of the Court, either sacked the Chief Justice or organised party supporters to storm the Court, shutting down proceedings.

Today, soliders sat bored at checkpoints in Islamabad. The Court needed no defending because, despite the best efforts of some in the media to portray it differently, the government was never at war with the Court.

What comes next? Many in the media are obviously disappointed that the Prime Minister was not disqualified forthwith and is likely to continue its attempts to fan the flames between the government and the judiciary. Don’t expect it to amount to anything but bellyaches. The Prime Minister’s lawyer has stated that he intends to appeal the conviction per proper legal procedures.

Once again the government has defied the doomsday predictions and has shown a maturity and respect for rule of law that is the hallmark of democracy. Zardari haters from Imran Khan to Ansar Abbasi opened today with calls that the Court’s decision must be respected at all costs. Following today’s proceedings, it has become clear that he only dramas will be in the media, not in the courtroom.

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.

Chaudhry Nisar’s Charge Sheet

Chaudhry Nisar on Friday told the National Assembly that the statement of PM regarding Osama bin Laden is “a charge sheet against the defence forces”, and that “it might be used against the defence forces in an international forum or court”. An interesting statement considering his leader Nawaz Sharif told DG ISI Shuja Pasha to his own face, “where there is smoke there is fire”. An especially interesting comment considering Nisar himself has termed Pasha as untrustworthy, earning him a sharp response from the DG ISI. Chaudhry Nisar who claimed he had proof that ISI was supporting PTI. Chaudhry Nisar is also the one who has demanded Gen Pasha’s resignation twice already this year – once after Abbottabad and again a few weeks ago. If anyone has been building a charge sheet against defence forces, it’s Chaudhry Nisar.

But so what? Are military and intelligence agencies sacred cows? I guess the better question is, should they be? How are we supposed to be safe if we can’t ask hard questions of the very institutions that are supposed to be protecting us? The world’s most wanted terrorist was found in our own yard, everyone wants to ignore the obvious problems with that fact.

When PM Gilani spoke before the National Assembly, he was not the first person to ask the question, and he won’t be the last. In May, polling company Rasmussen Reports found that 84 per cent of Americans thought it was likely that some Pakistani official knew where Osama was hiding.

The new national hero Mansoor Ijaz, when he hasn’t been accusing the military of plotting a coup, has been all over the media insisting that Pakistan military was hiding Osama bin Laden.

Apparently even former DG ISI Gen Ziauddin Butt has said that there is evidence that the military his Osama bin Laden with the knowledge of Pervez Musharraf, Intelligence Bureau General Ijaz Shah and possibly current chief of Army Staff Ashfaq Kiyani.

I think with each of these accusers, certain facts must be taken into light – Mansoor Ijaz’s credibility is very much in question. Gen Ziauddin Butt arrested and imprisoned by Musharraf following his coup against Nawaz Sharif’s government, so he may be saying these things just to get revenge.

But if people are out there openly accusing the military of hiding Osama bin Laden, shouldn’t we have an investigation to prove them wrong? This is what I thought the Abbottabad Commission was supposed to be, but, as usual, it quickly swept away the difficult questions and has all but ignored the question of how Osama got here in the first place.

Any ‘charge sheet’ against the military will not come from the PM. Hiding our heads in the sand and pretending that these questions are not already floating all over the world does nothing to improve our image or our national security. Quite the opposite. Isn’t it time we put the questions to rest with a real inquiry? What do we have to be afraid of?