Seen to be done?

Published: January 8, 2012
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The writer is a lawyer and partner at Ijaz and Ijaz Co in Lahore 
saroop.ijaz@ tribune.com.pk

The writer is a lawyer and partner at Ijaz and Ijaz Co in Lahore saroop.ijaz@ tribune.com.pk

Sometimes one wonders what is the yardstick by which an expression can be judged to be self-contradictory or paradoxical enough for it to be categorised as an oxymoron; for e.g. “military intelligence” is one, whereas “military court” has not quite made it yet. The distinction is not always crystal clear. Reference to two statements of the past few days provides the context for this musing. The first is the expression of the very literal intention of Mian Nawaz Sharif to establish military courts in Karachi, once he resumes power. The absurdity and non-logic of the statement was such that Nawaz Sharif and his party were quick to provide a context and even a denial of it. I think it is fair to let a statement slide, once it has been rubbished by its maker. The second reference was mildly less obvious, when Ms Asma Jahangir stated that the Supreme Court has towed the line of the “establishment” in entertaining the petition for an inquiry into the memo scandal. The “establishment” is now an accepted euphemism (though not a particularly effective one) for the military high command.

It is the vintage bluntness with which Ms Jahangir put forth the accusations which already have been insinuated to, is what almost takes one’s breath away. Previously we were used to the employment of undergraduate humor and graffiti poetry by Dr Babar Awan to make the point in less certain and certainly less articulate terms. Ms. Jahangir is a deeply serious woman and mandates to be taken very seriously. In any event, the allegations have been made and are fair game now. For the sake of clarity, the allegation is that the judiciary is taking orders from the “establishment” or at any rate giving this distinct impression. It is hard to disagree with Ms Jahangir’s observations.

The depressing thing about the verdict of the memo petition was its predictability. The language and the rhetoric of the Honourable members of the bench disclosed their minds almost at the first hearing. Ever since the restoration there is a tangible impression of self-righteousness and entitlement by the Supreme Court. The mistrust of Parliament, which previously emanated from the GHQ, has now found a more vocal mouthpiece in the Supreme Court. The formation of a judicial commission in the presence of a parliamentary commission should be condemned unequivocally. The idea is viciously anti-democratic. It is not the credibility of the individual members of the Bench or the commission which is under argument here, but rather the principle of bypassing Parliament. Further, the Supreme Court displays an utter lack of confidence in its own subordinate courts by allowing matters to be decided by special commission instead of trial courts. The message conveyed is that while trial courts and investigating agencies are good enough for ordinary cases, they cannot be trusted for the high-profile, publicity hogging, and sensitive ones. Incidentally, the Supreme Court has before it right now a matter where a special procedure for trial was adopted, the Zulfiqar Ali Bhutto reference. Pitting the three honourable members of the judicial commission against a police investigating officer completely misses the point of there being a uniform process of law for everyone.

We have reached a point where we prefer any action, to no action at all. Formation of commissions is the quintessential example of barely any action. Another unexamined claim is that judges are the most upright, incorruptible and sagacious people in this country, hence the tendency to cram all commissions with judges, both serving and retired. Well, there is no evidence to suggest the moral superiority of judges, it would be almost as absurd as accepting the ethical preeminence of accountants. They are specialists at what they do, to remove confusion that being interpreting and applying laws, not solomonic justice. The Supreme Court certainly went beyond that mandate while discussing possible impeachment of the president. The arguments for the current phase of judicial activism advanced by the Supreme Court are unnervingly similar to, if not identical to the argument for military activism.

Hackneyed platitudes like “perception is reality” and “where there is fire there is smoke” etc, inevitably invoked in discussions of politicians, might be of relevance here. If the Supreme Court is not in cohort with the army, it is doing a fabulous job in conveying this impression. The Asghar Khan petition and the missing people’s case etc. have to be boringly demanded again and again, so that we know that there is in fact justice for all. I do not want to diminish the grandeur of the lawyers’ movement or the romance, but whereas the memo case might be the most salient, it is by no means the first example of this tendency of the Supreme Court. However, when one hears the Chief Justice exhorting the “Sipahsaalar”, there is a definite queasy feeling. For one vulnerable moment, the impure, even blasphemous, thought that is it possible that that fight really was about employment when the Chief Justice disobeyed another “sipahasaalar”. Surely not, but the question does not go away easily.

Remaining on lazy maxims, another one is “justice should not only be done but seen to be done”. The “seen” part is as significant as the “done” part, and it is the one where our Honourable Supreme Court seems to be failing or is unconcerned. Most commissions, especially in Pakistan are not known for accessibility and openness. I understand the argument that it is a fact-finding commission and the trial will be conducted later etc. Yet, this is a very shaky start.

The Supreme Court has also decided that the very little criticism of its conduct is in fact too much and is issuing contempt notices to the insolent. The Court cannot expect to take cognisance of and more significantly form “breaking news” every working hour without getting its hands dirty. If the Supreme Court has decided to be an active player in the power struggle, which it apparently has, then it can no longer claim immunity to fair and even unfair criticism.

Published in The Express Tribune, January 8th, 2012. 

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Reader Comments (17)

  • sam
    Jan 8, 2012 - 2:47AM

    Excellent article. thank you. totally agree with you

    Recommend

  • Shah
    Jan 8, 2012 - 3:31AM

    Brilliant piece, Hats off to you Saroop ijaz

    Recommend

  • John B
    Jan 8, 2012 - 4:45AM

    It is the same court that fell silent when constitution was undermined by military coupe. The issue of PAK is every institution claims to be supreme over the other forgetting the rules they laid out in constitution.

    In a constitutional system, all directives right or wrong come from the parliament. The best thing that the SC should have done for PAK after all these years of its failings is to refuse to entertain the petition on memo gate in view of the parliamentary committee investigation.

    Let the political parties in the name of people fight and sort it out in the NA.

    What if the SC judicial committee finds that the memo gate is credible? Will they initiate prosecution against the government on their own? Do they have the authority?

    What if the Parliamentary committee finds that the memo gate is not credible unlike the SC? Who now has the supreme power to settle the matter?

    Courts have no power to usurp the authority of the parliament, since the power to the courts are given by the parliament and parliament can take away that power as she deems fit.

    All these are constitutional issues, time tested in various countries. When Obama criticized the US SC ruling on campaign finance case in his state of the union speech in front of the entire SC judges, one may view that it is a contempt of court. But since the elected house is supreme and all speeches and records are protected from prosecution, SC has no jurisdiction on the matter. The same goes when one of the US congressmen called the President a liar on the floor during president’s speech. No defamatory case can be brought against him.

    Independent judiciary does not mean that they are above the parliament. PAK institutions have a problem of understanding this distinction.

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  • yousaf
    Jan 8, 2012 - 4:54AM

    @Author:–through your own thesis and antithesis you have concluded that supreme court can no longer claim immunity to fair or EVEN UNFAIR criticism.Looks that after hard labour of 64 years by the forces to be have now taken-up one of the two last institution that still stand.May God save army and SC of Pakistan from the second attack

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  • Danish
    Jan 8, 2012 - 5:03AM

    “irrespective of the USA, I have absolutely not an iota of doubt on this, that no government in Pakistan, no military in Pakistan, no intelligence organisation in Pakistan would do such a stupid thing.”, said by Lt Gen(rtd) Nadeem, a member of Abbottabad commission (although disowned by Commission’s head). This statement of him, clearly shows how much biased and controversial, the commission has been, from its birth. Don’t have any hope whatsoever, that the truth about that OBL event will ever reveal. Nice Article. Mr. Ijaz!

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  • Amjad Cheema
    Jan 8, 2012 - 5:39AM

    Well written
    Only superior in this land of pure is military law.

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  • Anonymous
    Jan 8, 2012 - 5:47AM

    Excellent .

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  • hahaha
    Jan 8, 2012 - 7:19AM

    Brilliant Spot on. Asama ji is spot on in criticizing the High Court decision in mr Haqqani case.Why dont they try him under proper law for treason rather then using fundamental right to protect national interest.

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  • Kamal
    Jan 8, 2012 - 10:59AM

    Arguably justified…….completely agreed

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  • Qasim
    Jan 8, 2012 - 11:03AM

    Bravo but likely to fall on deaf ears. Instead of asking probing questions, judges are seen to be more interested in making headlines with their comments, language and the rhetoric. Worth reminding the honorable bench that “best sermons are those practiced, not preached”

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  • Mirza
    Jan 8, 2012 - 11:47AM

    SI, great Op Ed! You are back with a spot on analysis, for a while I thought that we have lost you! There has never been a rush of suo motu before the current PCO CJ and there is no example of it in any other country of the world. In addition, after the restoration of judges and their support by most segments of society they have assumed as if “they are elected like PM or Senate”. This false sense of entitlement is the root cause of judicial dictatorship. Judges do not prosecute cases and make decisions at the same time except in PCO SC. The judges make wise cracks and do not hesitate to show their inclination before the verdict.
    The judges have an attitude and ego second only to generals. They do not like any free speech or criticism. Of course the agitation and criticism by thousands of supporters of confessed murderer Qadri is never questioned. Every mullah and terrorist is released or not tried in any court of law. Or their trial goes at a snail pace like Qadri. The SC has a particular liking for political cases and dislike for real history making cases rotting for decades.
    Thanks for a very convincing Op Ed, let us hope that the SC judges read it in the spirit it is written.

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  • Zain
    Jan 8, 2012 - 12:13PM

    Agree with Qasim.

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  • Capricorn
    Jan 8, 2012 - 3:03PM

    “The formation of a judicial commission in the presence of a parliamentary commission should be condemned unequivocally. The idea is viciously anti-democratic. It is not the credibility of the individual members of the Bench or the commission which is under argument here, but rather the principle of bypassing Parliament.”
    The author should know the Parliament had refused to set up a commission on this case, why else do you think the matter was taken to the Supreme Court at all? Now AFTER the verdict was passed the Parliament decided to set up its commission. The same case was with the NRO case, the matter rightly belonged to the Parliament but when it refused to take this matter up somebody took the matter to the courts who then did what they should have done, outlaw it. Besides, when was the last time a parliamentary commission has ever actually done anything instead of waste everyone’s time without producing any results at all? Is the author living in a fantasy world?
    Also the Parliament is dominated by the government and its allies who will shed their own blood to protect Zardari, guilty or not. Just as the Supreme Court is accused of being a kangaroo court, is the author really so naive as to think the Parliament won’t be just as much kangaroo? The author should start living in the real world before writing articles like this one.
    If Asma Jahangir had spent as much time and energy actually defending her client as she did on bashing the courts, army and ISI on the media, she may have won a case, that is, if she had one to begin with. If Asma Jahangir is obsessed with grabbing the media limelight, people should criticize that as well if they’re going to criticize the courts for the same thing.

    “The Supreme Court has also decided that the very little criticism of its conduct is in fact too much and is issuing contempt notices to the insolent.”
    Babar Awan bashed the court in a press conference while the case was still sub-judice, so he had the contempt notice coming, then when he said bring it on, another notice was perfectly warranted (By the same token, the court should also have issued a contempt notice to the Sunni Tehrik when it rioted over Mumtaz Qadri’s death sentence and the judge of that case was forced to flee the country). While the author goes on and on about how the Parliament has supremacy (while turning a blind eye to how regularly the Parliament refuses to do its job) he forgets the Courts also have certain rights and authorities. If he didn’t want this case to go to the courts he should have written an editorial just like this one attacking the Parliament for refusing to set up a commission thus deliberately opening up the door to the case going to the courts.

    “If the Supreme Court is not in cohort with the army, it is doing a fabulous job in conveying this impression.”
    If Husain Haqqani and the civilian government are not in cohort with the Americans, they are doing a fabulous job in conveying this impression.

    It is incredible how often people completely out of touch with reality can write an article like this one and elicit a host of naive reader comments cheering him on.Recommend

  • Parvez
    Jan 8, 2012 - 3:39PM

    Interesting reading as always.
    From what little I understand, the law regarding contempt of court is more bark and less bite and as such is usually ‘waved about’ and then put back.
    The impression does exist that the superior court plays to the gallery with little concrete result.

    Recommend

  • observer
    Jan 8, 2012 - 8:11PM

    @Saroop Ijaz

    I am a little confused here.

    It is like this, If something gets ‘done’ then it has the option of being ‘seen’ or ‘not seen’ as being done.

    How do we make something ‘seen as done’ without it having been done in the first place?

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  • observer
    Jan 8, 2012 - 9:39PM

    @Capricorn

    A.The author should know the Parliament had refused to set up a commission on this case, why else do you think the matter was taken to the Supreme Court at all? Now AFTER the verdict was passed the Parliament decided to set up its commission.

    Simply not true.as you can see as on 27th Dec the Parliamentary Committee was in place. The ‘verdict’ came on 30th Dec. Try again.
    http://www.khaleejtimes.com/DisplayArticle08.asp?xfile=data/international/2011/December/international_December1061.xml&section=international

    B.If Husain Haqqani and the civilian government are not in cohort with the Americans, they are doing a fabulous job in conveying this impression.

    In case you did not notice, Mr Haqqani is an appointee of the Government and you can not be Ambassador in a country while being inimical to the host.
    And did the ‘civilian government’ hand decide to join the Americans in 2001 or what?
    And perhaps you are aware of some Constitutional provision requiring Mr Haqqani to be neutral in everything.

    Now compare that with the Constitutional position of the SC.

    Linda Goodman characterises Capricorns as being well read and honest, I am growing skeptical now.

    Recommend

  • Shabnam Khan
    Jan 9, 2012 - 12:50AM

    Ejaz Saroop,

    I know one thing: you write well! Today I reccomended my students to follow your writings for ideas and imagination. For example your “It is the vintage bluntness with which Ms Jahangir put forth the accusations which already have been insinuated to, is what almost takes one’s breath away” is wonderful…
    My best,
    Shabnam Khan

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