Glorious dissent

In a landmark opinion, Justice Asif Khosa has reached a conclusion, which in his own words, would have been evident even to “A pedestrian in Pakistan Chowk, Dera Ghazi Khan”. He declared, “All the versions advanced by…[Mr Nawaz Sharif and his] children explaining how the relevant four properties in London…[have] been found by me to be conflicting and unbelievable and the same are, therefore, rejected,” adding that the “Prime Minister of Pakistan… has not been honest to the nation, to the representatives of the nation in the National Assembly and to this Court …As a consequence [he]… has become disqualified from being a member of the Majlis-e-Shoora (parliament)”. He further writes, “The value of the relevant assets in London is ostensibly disproportionate to the declared and known sources … [this] clearly and squarely attracts … National Accountability Ordinance, 1999 necessitating the National Accountability Bureau to proceed against… [him].”

Superior courts, to secure fundamental rights of the people, have to grapple with the traditional fetters of separation of powers and self-restraint. The role of judiciary, as non-elected entity in democracy to secure fundamental rights, received a lot of flak and was criticised as “judicial overreach” in yesteryear for activism. It is in this context, the opinion of Justice Khosa is not just relevant today, as it explains that overreach, but is also futurist. Khosa on several occasions, in his opinion, has lamented the role of executive that necessitated the court to intervene. The statutory bodies that could have easily dealt with the matter, he opined, have either failed or have refused to perform their duties under the law. Not for the first time, substantive justice in Khosa’s opinion trumps all other considerations. He wrote, “It is not for nothing that Article 187(1) of the Constitution has empowered this court to do ‘complete justice’ where all other avenues of seeking justice are either unavailable or blocked.”

The application of mind is meticulous and dissent is thorough, as the opinion does indeed articulately brood over the diverse aspects of this case from all possible angles. The discussions by Justice Khosa on the need to keep proceedings fluid, without placing a clog on mode, mechanism or modality while exercising jurisdiction under Article 184(3) of the Constitution, burden of proof in constitutional matters and law of evidence and its scope and applicability, is a readers delight. In addition, although in the past, he had critiqued Articles 62 and 63 of the Constitution both as a lawyer and in his opinion on the Bench, Justice Khosa has supplied much-needed context to the two Articles by affirming the view of Justice Faez Essa in “restricting their applicability to public conduct of a person affecting others rather than his private conduct not affecting generality of the populace.”

Khosa has often drawn on literature as he has continued to judge with passion. He admits that “the power of literature for commenting upon a reality through the medium of fiction is fascinating…” In the past, he has once also employed an analogy of T-20 cricket in criticising judges’ “old and archaic styles of writing their orders and judgments which is causing a disconnect between the judiciary and the litigant public.” We may also remember the reference to Khalil Gibran’s Pity the Nation, while holding another premier to account, and his addition to the poem, that he so modestly began with the words “With an apology to Khalil Gibran.” As though an apt reference to The Godfather wasn’t enough, the readers were treated with subtle humour as well. Rejecting explanations from the lawyers of the prime minister and his family, Justice Khosa wrote, “The law sometimes is called an ass but the judge should, as far as it is possible, try not to become one.”

Opinions and judgments in original jurisdiction of the Supreme Court, unlike those passed in review or appellate jurisdiction, require more than just the knowledge of textbook law. Opinions in original jurisdiction are often addressed to a wider audience beyond the walls of the courtrooms and therefore, the courts invariably factor in the socio-political trends and local history. Justice Khosa’s opinion, in terms of not just legal insight, but also due to its appreciation of chequered local history on public accountability, has indeed created a legal scholarship on jurisprudence developed under Article 184(3) of the Constitution. The opinion will be remembered and discussed in legal and academic circles for a long time.

Vikram Seth in his sleepless pilgrimage to life, A Suitable Boy, discusses whether laws propel societies forward or societies propel laws. Trapped in reliance on precedent, law rarely anchors a social change. But the dissent by Justice Khosa has been a necessary shock to our system. It is a significant stride in dealing with accountability of public officials. Even if this minority view does not translate into a majority in 60 days — it has carried and propelled the country’s collective consciousness forward. The fact that it has received such acclaim and recognition is indicative of the long hope for spring — it has arrived, melting the first snowflake.

Published in The Express Tribune, April 25^th, 2017.

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