Know thy facts

What we are witnessing is struggle between visions — between those who want rule of law & those who want rule of man.

There are moments in my academic past of which I am quite proud. Getting a distinguished Yale Law School professor of Constitutional Law to swear at me in open class is not one of them.

Some context first; the debate in question related to US vs Fordice, a case then pending before the US Supreme Court. The facts were that prior to segregation being declared illegal, Mississippi universities had been strictly divided into universities for blacks and universities for whites. After the US Supreme Court declared segregation illegal, Mississippi’s universities were ostensibly desegregated. However, a race-neutral admission test was implemented under which any student wanting to go to the historically white universities had to meet a minimum standard. The result was that the historically white universities remained overwhelmingly white, while the historically black universities remained overwhelmingly black. It was this de facto segregation that was under challenge.

My view then was that if the segregation resulted from a race-neutral test, then there was no ‘principled’ basis on which to declare it illegal. In other words, it was rational for the state to have universities of different standards and it was not the fault of the state if blacks could not meet the minimum entry standards. And it was this view, which had driven my normally mild-mannered professor to expletives.

As it turned out, all nine members of the US Supreme Court disagreed with me, a fact that I filed away under the general heading of  ‘inexplicable mysteries’, at least, until the day I read a biography of Judge Frank Johnson.

Judge Frank Johnson was a district judge based in Alabama who became the point man for judicial efforts to force desegregation. What I learnt from his biography was that disputes regarding blacks and whites in the American South could not be seen in terms of abstract principles. Instead, because opponents of desegregation had used every ostensibly neutral option to try and prolong white domination and that, as a consequence, the judiciary had decided that no rationale and no argument would be accepted for whatever reason, unless and until it produced desegregation in actual fact, principles be damned.

I mention all of this because our country will soon be plunged into a maelstrom of debate when the Supreme Court takes up the constitutionality of the new contempt law. All sorts of abstract principles are going to get thrown around. But this is not a case about high jurisprudence. As with the Mississippi colleges, judgment will be driven by the desired result. And I don’t have much of a problem with that.

Before I explain why I don’t have a problem, let’s review the facts. The new contempt law has been passed solely for one reason, that is, to try and delay the inevitable disqualification of Raja Pervaiz Ashraf for failing to implement the NRO judgment. In my view, the PPP’s stated excuse for not writing to the Swiss is rubbish. However, I also think the Supreme Court should avoid yet another fight by setting up a commission to send the letter directly to the Swiss.

Wait, you ask, if the Supreme Court shouldn’t be fighting with the PPP over this issue, how is striking down the new contempt law justified? Let me explain.

The short version is that all legal principles are not equal. Some principles are more important, more fundamental and more ‘weighty’ than others. And out of all legal principles and concepts, perhaps the most important is the concept of a ‘rule of law’.

There is no precise definition of the term ‘rule of law’. However, the essence of the concept is that the rule of law requires the exercise of governmental power to be subject to certain rules enforced and interpreted by an independent authority.

The new contempt law provides that certain high political functionaries such as the President, the Prime Minister and federal ministers cannot be charged with contempt for  “any act done or purported to be done ... in exercise of their powers and performance of functions as a public office holder”. In other words, what the contempt law provides is that our President, Prime Minister and federal ministers will henceforth have the right to ignore the courts and instead only apply such laws as they deem fit. Self-evidently, this is a complete negation of the rule of law.

At the same time, the new contempt law is not what scares me because that law is as good as dead today: all that remains is the formality of declaring it unconstitutional. Instead, what scares me is what lies beyond. If the majority of Parliament can be so unmindful as to enact this law, can the day be far behind when the Constitution itself will be amended to provide the same?

I hope that day never arrives. If it does, the country will learn that because of our history of constitutional adventurism, our judiciary has developed a vast arsenal of techniques to protect the Constitution. For example, all our military dictators have tried to provide immunity to their deeds through constitutional amendments. And in each case, the courts have steadfastly held that actions that are mala fide and without jurisdiction can never be protected from judicial scrutiny, irrespective of what any validation clause may say.

There is also one final ‘nuclear’ weapon that our judiciary holds in reserve — the ‘basic structure’ doctrine. Our judiciary has never applied that doctrine and, in fact, has never even held that it has the power to strike down constitutional amendments. But I have no doubt that if the immunity provision was incorporated into the Constitution, then that amendment too would be struck down.

It has now become trite to observe that we are witnessing a power struggle between the judiciary and Parliament. Perhaps, that was true earlier but it is no longer accurate. What we are witnessing instead is a struggle between visions of Pakistan — between those who want the rule of law and those who want the rule of man. For now, the rule of law is safe. But if this confrontation continues, the result may be a loss for both sides: an end to the rule of law, as well as an end to those men currently doing the ruling.

Published in The Express Tribune, July 17^th, 2012.