The elephant in the room

The inauguration of the new judicial year at the Supreme Court (SC) in Islamabad on September 11, 2017 saw a number of speeches regarding the dispensation of justice in a democratic society. Chief amongst the speakers was the Chief Justice of Pakistan (CJP) Mian Saqib Nisar, who dilated on the criticality of an independent and impartial judiciary for a true democracy. According to him, each state organ needs to perform its duties and functions in accordance with the constitutional scheme of things, particularly the three pillars of the state, ie, the executive, legislature and judiciary. Without making express reference to the July 28 Panamagate case verdict, the CJP, perhaps responding to the criticism that has been heaped on the judgement, clarified that the SC does not write judgements to please anyone or settle scores, but renders judgements in the fine scales of justice. He explicated the requirement of judicial review whenever any authority or functionary of the state acted against the constitution or law. Express reference or no, the Panamagate verdict appeared to be on a lot of minds at the full court reference, assuming, if one may so put it, the avatar of the elephant in the room. Most speakers too, like the CJP, did not make any direct mention of the verdict but it seemed to cast a long shadow over the proceedings. Attorney General (AG) Ashtar Ausaf argued that recent events do not augur well for the trichotomy of powers that underlies the development of a constitutional democracy. He regretted the fact that political issues were brought before the court instead of being resolved on the appropriate forums for the purpose, chief amongst which is the parliament. Most analysts agree that Nawaz Sharif made the fatal mistake of not strengthening parliament during his four-year stint as prime minister and this flaw contributed to his ouster through a petition that the SC had initially rejected, but which was later taken up in the backdrop of Imran Khan's threatened lockdown of Islamabad after the Panamagate revelations last year. Touching on the role of the media, the AG expressed the hope that it would not evolve into a parallel 'people's court', a reference perhaps to the readiness of the media, especially electronic, to pronounce judgement on judicial matters even before they have gone through proper judicial proceedings. On the other hand, Pakistan Bar Council Vice Chairman Mohammad Ahsan Bhoon rejected criticism of the verdict without reasoning when all the facts were available on record. He was confident that the verdict would eventually prove a hallmark in the annals of history, helping to bring on the basis of the principles enunciated therein other institutions, hitherto considered sacrosanct, within the accountability net. Supreme Court Bar Association (SCBA) President Rasheed A Rizvi was less sanguine about the verdict's place in history. He expressed his bitterness regarding the inclusion of members of Military Intelligence and the ISI in the Joint Investigation Team set up to probe the matter. Citing the Asghar Khan case, he argued that military interference in political matters evoked finger pointing at both the military and, in the Panamagate case, at the judiciary itself, considering the political sensitivity of the issue. He forcefully argued that the SCBA did not believe that the only independent and honest people capable of an impartial inquiry against a sitting government belonged to the armed forces. Corruption, he added, was a massive challenge and the judiciary had to fight the menace but it should be seen to do so impartially for the sake of its own reputation and standing. He pleaded for the Imran Khan petition that led to the disqualification of Nawaz Sharif not to be the last such but instead to widen the scope of accountability to include other prominent individuals, families and institutions.
The arguments raging around the SC verdict in the Panamagate case are unlikely to abate soon. But one aspect that has been highlighted by the affair is the need for a forum for appeal against the verdicts of the SC, in situations when matters are entertained directly by the honourable court such as when it takes up a matter under Article 184(3). During the discussions on the 18th Amendment in 2010, one proposal was to create a constitutional court to provide such a forum but alas consensus could not be built around the idea and it was eventually dropped. But the need has manifested itself as never before in the wake of the Panamagate verdict. Ideally, it should be the judiciary itself that should point the possible way forward in this eminent regard.