A step too far?

SC’s jurisdiction is not answered with reference to the Constitution or precedent, instead exist in a ‘grey area’.

The recent decision of the Supreme Court to take notice of the memogate imbroglio and to order an enquiry has run into a storm of criticism. The PPP has immediately suggested that the Supreme Court’s actions are part of a “Bangladesh Solution” designed to replace the existing government with a panel of technocrats. Various sympathisers in the media have made harrumphing sounds. And even normally cooler heads have suggested somewhat politely that the decision of the Supreme Court to get involved was not entirely appropriate.

In all of this, the one question which has energised the legal community is whether the Supreme Court’s intervention was in accordance with law. Unfortunately, this is the wrong question.

It is the wrong question because issues like the boundaries of the Supreme Court’s jurisdiction are not issues which can be answered with reference to the text of the Constitution or even existing precedent. Instead, issues like this exist in a ‘grey area’, where the ‘rightness’ and ‘wrongness’ of decisions depends upon the degree to which they are accepted.

The normal reaction of non-lawyers to this argument involves expletives and bovines. How is it, they ask, that courts can somehow bootstrap their way into new jurisdictional domains? To paraphrase one famous scholar, courts are not Frankenstein-type creatures which can live independently of their creators. Instead, their argument is that courts are creations of the Constitution and bound by the limitations contained therein, as much as the other branches of government.

The problem is that while this concept is fine in theory, the words of the Constitution are not like blocks of stone: instead, they are more like clay, to be molded and remolded by successive generations of judges. More importantly, it has always been so.

There is an old story much told in the Talmudic tradition of a debate between some rabbis regarding the proper interpretation of a particular passage in the Torah. At one point, a dissenting rabbi tells the other scholars that if he is wrong, God should strike him dead, whereupon nothing happens. The dissenting rabbi then prays for a miracle to show the other rabbis that he is indeed correct. Lo and behold the miracle happens but the other rabbis stick to their position. Ultimately God himself intervenes and tells the various rabbis that the position taken by the dissenter is, in fact, correct. And at that point, the rabbis tell God that He is not in charge of the interpretation of the Talmud but that this is a responsibility to be discharged exclusively by them. Whereupon God concedes the exclusive right of the rabbis to interpret the Torah even if God Himself disagrees with the interpretation!

A more recent example comes from US history. Many people know of Marbury v. Madison as the famous case which introduced the concept of judicial review, i.e. the idea that the judiciary has the power to strike down laws repugnant to the Constitution. Nobody now argues that Marbury was wrongly decided. But the fact of the matter is that Chief Justice Marshall’s entire argument in that case was built upon thin air, not constitutional text.

A third example comes from across the border and the concept of ‘basic structure’ developed by the Indian Supreme Court in order to strike down amendments to the Constitution. The basic structure doctrine is now beyond dispute in India. At the same time, the idea that amendments to the Constitution can themselves be struck down by the judiciary is completely and utterly foreign to American constitutional jurisprudence: one may as well suggest to NASA that moon landings are a bad idea because the lunar surface is composed of cheese.

Let us return now to the point from which we started. Is the Supreme Court ‘right’ in directing an enquiry into memogate?

Speaking for myself, I am not particularly outraged. Given all that has happened in our jurisprudence, directing an enquiry into what is prima facie a very serious matter is hardly novel jurisprudence. In any event, it’s not as if the Supreme Court is going to try Mr Haqqani itself. If the enquiry reveals any evidence of wrongdoing, then the most the Supreme Court can do is to direct the federal government to proceed in accordance with law and initiate criminal proceedings against Mr Haqqani. True, there is the outside possibility that the Supreme Court could direct the army to court-martial Mr Haqqani under the Army Act, 1952, but that would likely provoke too much controversy for even the current bench to handle.

The point, though, is that my carefully considered legal opinion is not relevant. As already stated, the memogate issue falls into a jurisprudential twilight zone where the legality of what the Supreme Court does is determined not by existing precedent so much as by the public’s reaction. And in this case, the public’s reaction seems decidedly dubious.

I make no claims about knowing what the public thinks. But I do know what my father thinks since he took the liberty of informing me very clearly that the Supreme Court, in his opinion, was now interfering with democracy. At least demographically and socially, I would imagine that my father, as a 75-year-old retired executive, would fall squarely in the bracket of people convinced that Zardari is a thief and that heaven and earth should be moved in order to nab him. The fact that people like my father are now perturbed by the gyrations of a court which they once cheered on is, therefore, at least one very small sign that the tides of public opinion may be shifting. Again, this may not be because the intervention in memogate is so legally unsound; but there comes a time when even a straw can break a camel’s back.

Published in The Express Tribune, December 14^th, 2011.