Is the Supreme Court Overplaying Its Hand?

Is the Supreme Court overplaying its hand? That seems to be the lesson taken from Asma Jahangir’s column in today’s Dawn, “Flaws in the judgment.” The justices of the Supreme Court as well as the chattering heads in the media and opposition parties would do well to heed her words. After all, as a well-known human rights activist, UN Rapperteur and Chairperson of Human Rights Commission of Pakistan and advocate of the Supreme Court, she knows what she’s talking about.

Perhaps most eye-opening is Asma Jahangir’s unmistakable repudiation of the NRO verdict as a failure on the part of the court to maintian impartiality.

At the very least the judiciary is expected to be impartial. That too is suspect, as seen in the NRO judgment. Throughout, the NRO judgment has assumed the guilt of those who benefited from it. Courts are bound to presume a party innocent until found guilty. In paragraph 43 the judgment reproduces portions from a book by Benazir Bhutto, traces the reasons for the promulgation of the NRO and concludes that the ordinance had benefited only criminals and corrupt public office holders.

It then mentions how money plundered by Marcos of the Philippines and Sani Abacha of Nigeria was brought back from foreign banks. Once again, the court jumps to conclusion, glossing over the fact that both Marcos and Abacha were unelected rulers whose downfall did not start with judicial activism. Marcos was overthrown by the people and Abacha’s family was charged with money laundering after his death.

Throughout the almost 300 pages of the detailed NRO judgment a finger is pointed towards the president — but there’s hardly any mention of the immunity he enjoys under Article 248 of the constitution.

The SC, through its judgment, confirms that the Government of Pakistan spent Rs660m to Rs2bn to recover $60m laundered abroad. This constitutes an indictment of the institution of the judiciary which allowed these cases to fester for so many years with large amounts of money being spent under its very nose. This amount could not have been spent by Musharraf for his aversion to corruption but for victimising Benazir Bhutto. This lends credence to the PPP’s claim that it alone has been subjected to a witch hunt.

Throughout the judgment the SC has emphasised Article 62 of the constitution and shown keenness to disqualify holders of public office. While discussing the insertion of Section 33 F in the NAB ordinance, the judgment argues that by avoiding conviction through the misuse of law those with the stigma of corruption attached to them could not become members of parliament.

Meanwhile, the use of Articles 62 and 63 are justified as they remain a part of the constitution despite being recognised as obnoxious additions by dictators. If we are to turn over a new leaf in our political history, then to plead that that legacy of dictators that suits us will be accepted and the one that hurts us will not is a lame defence.

In addition to a failure to maintain impartiality and the courts finding answers only where they are convenient, there exists a smell of hypocrisy, also.

The judgment has relied heavily on the principle of maintaining the trichotomy of power. Taking away the powers of the courts to declare people guilty or otherwise would infringe upon the judicial domain. Yet, the SC has challenged the domain of the president to promulgate an ordinance without satisfying the apex court that advice given for its enactment was sound enough.

But don’t let her thorough rebuke of the court’s verdict make you think that she is somehow just a pro-goverment supporter. Actually, she says quite clearly that if Zardari is guilty of some impeachable act, then there is a process by which this can take place. But the courts cannot simply make up the rules as they go in order to get a verdict that meets some political expediency. Actually, doing so would do more than bring down Zardari. In the words of Asma, “circumventing all norms of the rule of law to get him would drown us too.”

These are words the nation would do well to heed.