By Shehryar Riaz Sheikh
26 April 2012 was another tragic day in our democratic history; the unanimously elected Prime Minister of Pakistan who in his wisdom ordered the release of the deposed Lordships of the Superior Courts immediately upon his election was convicted of Contempt of Court. Notwithstanding the uniqueness of NRO judgment condemning over 8000 accused without a hearing and the inherent selectivity of only targeting the President and his aides in the process, the overwhelming part of the judgment was implemented by the Federation of Pakistan. It is pertinent to mention that the grand strategist (of the “strategic depth” fame)–the promulgator of the infamous Ordinance luxuriously resides safe and secure from the wrath of law. Former Prime Minister Mohammad Khan Junejo and his almost 9 March’07 like moment of defiance during the notorious Zia regime is a case in point as to how an instance of individual heroism could not break the dictatorial chains. In case of the present dispensation, it was Benazir Bhutto’s sheer political maneuvering in striving for a political settlement, her ultimate sacrifice coupled with the sagacity of the political leadership along and the democratic struggle unleashed by the lawyers movement which paved way for the return of democracy to Pakistan. The present democratic dispensation is the sequel to NRO. History is bound to narrate as to how if had not been achieved, there would have been no elections, no assemblies, no free media and no free judiciary. The national leadership too would still have been languishing in exile.
Theodore Roosevelt completed the notion “No man is above the law….” by penning an additional prerequisite for the essence of the rule of law much to the benefit of the victims of selective justice that “no man is below the law either”. It is common knowledge now as to how Pakistan Peoples Party has repeatedly been denied justice. In spite of the founding chairman of the party being eliminated in a judicial murder, the charismatic chairperson being hounded in Courts across the country for years in her quest for justice without a single charge ever being proved, the co-chairperson being incarcerated for an astoundingly long period and till date subject to the worst political victimization, PPP’s reference of esteem and deference for the Judiciary can be judged from a long history of repeatedly bowing before the supreme majesty of law at times of adversity and severe injustice where bias evidently seemed floating on the surface of the adjudicature. This at the very least and from even a pessimistic view implies utmost respect for the rule of law. The state of denial seems to have deeply ingrained in the collective psyche of PML-N. Claiming to be innocent on all accounts, as a memory refresher of their gory shenanigans, they need to be reminded of the ‘revolutionary’ guard of N leagues’ unruly mob attack on the Apex Court. The only other precedent of such disgraceful behavior was displayed on November 3’07 when the commando force of the dictator ransacked the highest Court of Law. The aforementioned instances are unprecedented in the sheer brutality and utter disregard for the independence of Judiciary fundamentally enshrined in the Constitution of Pakistan.
From a purely legal standpoint, the short order (which incorporates the operative part of the judgment) quite clearly appears to have dealt with matters beyond the scope of the indictment. This implies that the Prime Minister was condemned unheard. The most probable reasoning against this view is that the judgment read into Section 18 of the Contempt of Court Ordinance 2003 as per which few legal minds contend that conviction of contempt regardless of the type is akin to a conviction of contempt for having acted in a manner which brings the judiciary into ridicule. According to this reasoning, the elements of Section 18 are a prerequisite for securing a conviction in Contempt of Court; the Courts would only convict a proven contemnor if the elements of Contempt satisfy the effects mentioned in Section 18 (notably bringing the Court into ridicule). The issue with such reasoning is that treating Section 18 as if it enshrines the whole concept of Contempt makes one question the purpose for the distinction between the differing types of Contempt quite clearly manifested in the Ordinance. Carrying forward the same reasoning, the core issue remains as to how the Lordships were satisfied on surpassing the threshold rendering a conviction without even hearing the condemned party and how can the reasons leading to guilt not be expressly particularized in the charge sheet. Such a negation of a fundamental principle of natural justice results in the miscarriage of justice.
Historically, the honorable Supreme Court with its unelected Lordships has had a pivotal role in uprooting the nascent saplings of democracy and rule of law over and over again. It is hard to comprehend as to how despite the Court appointed prosecutor in the case assertively pleading of having not an iota of evidence against the accused in the Contempt of Court proceedings, the honorable Supreme Court seemed to have enough ‘evidence’ to convict a democratically elected Prime Minister for merely upholding a Constitutional provision and following the advice of the Law ministry of the federation of Pakistan. The Supreme Court quite remarkably seemed to have enough ‘evidence’ to convict the nation’s beloved SZAB in a globally recognized trumped up murder charge. The Supreme Court seemed to have enough ‘evidence‘ to justify the ruthless Zia regime. The Supreme Court peculiarly seemed to have enough ‘evidence’ to justify another commando general’s misrule and striking abrogation of the Constitution. The Supreme Court also seemed to have enough ‘evidence’ to revoke the order of dissolution of the Federal government led by Mian Nawaz Sharif.
The strong critics of the flawed criminal justice system point out to the dismal prosecution structure. That might be true but the fact of the matter is that there are glaring discrepancies in judicial reasoning and discretion in cases associated with Pakistan Peoples Party. At the heart of this debate revolves a peculiar Pakistani styled jurisprudence via the “doctrine of selective justice” replacing the rather dreadful Roman “doctrine of State necessity” in trampling the Constitution. The Supreme Court astonishingly never seems to have enough evidence’ to convict a single proudly confessing mass murderer brainwashed by a perverted view of the faith. The Supreme Court oddly never seems to have enough ‘evidence’ to convict sectarian killers thriving under a flawed criminal justice system, rapists, billionaire defaulters or as per the alarming trend anyone not associated with the Pakistan Peoples Party. The Supreme Court quite extraordinarily never seemed to have enough ‘evidence’ to convict a commando dictator who not only quite blatantly put the Court into ridicule but also arrested the honourable Lordships with their families. The Supreme Court never seemed to have enough ‘evidence’ to revoke the twice ordered unlawful dissolutions of the Federal governments of Benazir Bhutto. The Supreme Court surprisingly never seemed to enough evidence’ to convict the Sharif brothers over the confessional deals facilitating the whitening of their alleged black billions nor did the apex Court seemingly have enough evidence’ to convict the Sharifs over the utterly disgraceful attack on the highest court of the country. The Supreme Court apparently would never seem to have enough ‘evidence’ to convict any arrogant general or Judge for repeatedly and brutally marring the Constitution through their myopic adventurism. The Supreme Court would always most likely fail to have enough évidence’ to convict even a single person responsible for the Fall of Dhaka, the May 12 killings, the murder of Nawaz Bugti and the list goes on and on. Most tragically despite the struggle and renaissance of the much touted independent judiciary, the streams of justice remain muddled up and impure as ever.
It is most unfortunate that a core pillar of the State is being held hostage by illusions of popularity and misguided notions of representing the will of the masses through the manipulated antics of a sensationalist hyperactive media. Despite the NRO and the palace intrigues, the Pakistan Peoples Party prevailed in the hearts and minds, across the breadth and depth of the electoral demographics of the country. Whilst the chattering class appeared confused on as to who actually represents the will of the people—the unelected judiciary or the hyperactive anchors on the mainstream media, the masses spoke and resoundingly gave their verdict again in the favor of Pakistan Peoples Party. The PPP candidate won the by-election in a constituency widely recognized to be a PML-N stronghold for over last twenty years. As the results were announced, the words of the legendary Faiz majestically resonated in the background to conclude the day:
Na Unki Rasm Nae Hai, Na Apni Reet Nae. Yunhi Hamesha Khilaye Hain Humne Aag Mein Phool. Na Unki Haar Nae Hai, Na Apni Jeet Nae
The writer was recently called to the bar at Lincoln’s Inn and is a freelance columnist. Twitter handle:@ShehryarRS