We the people

Judgments rendered by the Supreme Court will continue to be attacked on the basis that historically our judicature has been a henchman for khakis and the ruling elite. The court process produces winners and losers. And the murky past of our judiciary affords every sore loser a basis to divert attention from his or her deeds and instead bring into focus the integrity of the court itself. The wider acceptability of this line of reasoning as a suitable retort to an indictment suggests that two-wrongs-do-make-a-right logic is gaining traction in our society. Add to this join-them-if-you-can’t-beat-them rationale and our transformation into a predatory society would be complete.
If we assert that only he who hasn’t sinned can cast the first stone, is there anyone in public life qualified to seek correction and accountability? Where will we find the angels who have never erred? If this argument is accepted, the conclusion is this: as no one has the moral standing to question anyone else, let’s all continue to make hay while the sun shines. In this game of plunder, the threat comes not from the greediest but the one who refuses to play. And for the game to continue, it is in the shared interest of all players to ensure that everyone is devoid of moral authority.
Amidst this state of despair, the detailed ruling of the Supreme Court in the prime minister’s contempt case is a source of hope. It was not just the prime minister who was on trial, but also the ability of the court to act as a neutral arbiter of the law. It was alleged that the court was acting on behest of the establishment to instigate regime change. It was argued that the judges were sitting in their own cause to settle scores. And yet despite the allegations of partisanship and bias, and the political drama and media circus surrounding the trial, the detailed judgment has affirmed the court’s ability to disregard extraneous considerations and focus singularly on the law.
The temperate language and meticulous legal reasoning of the judgment authored by Justice Nasir-ul-Mulk laces it with objectivity. The court rightly doesn’t get into a debate about the future of the prime minister, as many would have liked. It declares that the prime minister is guilty of contempt of court. It holds that his acts and omissions are grave enough to satisfy the requirement of ‘substantial detriment’ under Section 18 of the Contempt of Court Ordinance, 2003. Notwithstanding the flawed assertions of the ruling party regarding the substantive role of speaker National Assembly in ruling on the prime minister’s disqualification, the court doesn’t attempt to preempt any abuse of authority.
The fate of the prime minister has been sealed by the concluding sentences of paragraph 70. “We are, therefore, fully satisfied that such clear and persistent defiance at such a high level constitutes contempt which is substantially detrimental to the administration of justice and tends not only to bring this court but also brings the judiciary of this country into ridicule. After all, if orders or directions of the highest court of the country are defied by the highest executive of the country then others in the country may also feel tempted to follow the example leading to a collapse or paralysis of administration of justice besides creating an atmosphere wherein judicial authority and verdicts are laughed at and ridiculed.”
Article 63 lists grounds for disqualification of parliamentarians and its sub-clause (1)(g) holds that a person stands disqualified if he is convicted by a competent court for acting in a manner that brings the judiciary into ridicule. Now that the prime minister has been convicted for contempt and the court has explicitly ruled that his actions have brought the judiciary into disrepute, Article 63(1)(g) has been triggered as a consequence. Article 63(2) states that the question of disqualification shall be sent by speaker National Assembly to the Election Commission within 30 days, unless she decides that no question has arisen.
Despite the court’s clear ruling, Farooq Naek wily insists that the speaker has the discretion to rule that no question of disqualification has arisen. Under Article 63(2), the speaker has a limited role to determine whether or not a fact exists. She is not legally empowered to decide whether such fact should result in disqualification. Such judgment has been reserved for the Election Commission under Article 63(3), to be passed within 90 days of the matter being referred to it. But the minions of the ruling regime insist on turning the law and its logic on its head by arguing that the speaker can declare a bright sunny day to be a dark night and such finding is final and infallible.
It is this readiness to prove day as night in the name of politics, honour and loyalty that exposes the poverty of ethics and morality in our society. When the PPP’s dominant narrative is that the courts are producing selective justice, how can it simultaneously argue that it respects the judiciary and the prime minister’s appearance before the Supreme Court is evidence of the same? If the prime minister’s decision to appear before the court was a matter of choice, does it mean that he could have decided not to submit before the law when summoned? Isn’t this entrenched sense of entitlement, that the mighty are larger than the law, itself crippling rule of law? Wasn’t this the root-cause of the contempt case?
In a society committed to higher standards of morality in public life, wouldn’t there be vocal demands requiring the president to waive his immunity even if he was afforded the same by the Constitution, face charges and allow due process to run its course? What parochial sense of honour results in the argument that our president’s submission before a foreign magistrate is a matter of shame for every citizen? Is it because the magistrate is too small a man or is it the foreign part that should bother us? If the status of the official applying the law is relevant, does it mean that a police constable dare not question anyone powerful or that the summons of a magistrate third class can be ignored at will?
If opposition to foreign proceedings is contingent on lets-not-wash-our-dirty-linen-in-public logic, doesn’t the same nurture a decadent view of family honour that results in daily killings around the country? Doesn’t the concept of sovereign immunity belong to pristine monarchial times when men ruled and not the law? Doesn’t every argument in support of forgetting about Asif Zardari’s Swiss case and the alleged $60 million of laundered money emanate from some conception of honour or loyalty rooted in chauvinism?
In order to be a virtuous and socially useful concept, shouldn’t the concept of loyalty be larger than unquestioning allegiance to an individual? Does loyalty to family mean you should stand by and defend each of its members no matter how foul their acts? Does loyalty to one’s job mean robotic compliance with all commands, whether legal or illegitimate? Must loyalty be a shade of jingoism and render one amoral?
The separate note appended to the prime minister’s conviction ruling authored by Justice Asif Khosa is invaluable, for it highlights our contradictions. It reads not as a sermon, but as a cry of anguish. Stating that law divorced from morality or not backed by the public means little is to state the obvious. But it is a curse of these times that even such self-evident truth is lost on us. Justice Khosa’s note is a call for introspection for all of us. And as charity begins at home, most relevant for the Supreme Court itself is the following: Pity the nation that clamours for equality before law, but has selective justice close to its heart.