By: Saad Rasool
His loyalty swears allegiance to the empire of law, not to the seat of any judge
I have been raised on the idea that a man keeps his distance from friends when they are in high places, and never leaves the side of a friend who has been knocked to his knees by life. In fidelity to this ethos, the following is a howl from my wounded heart, in defence of my friend, Babar Sattar, whose intellect, audacity and honesty, has cost him the wrath of the mighty and the powerful!
Let me emphasize at the very outset that I agree with, and endorse, every word written by Babar in his op-ed piece, “Hubris as Justice?”. And, as we customarily state in legal pleadings, ‘let the contents of that piece be read as an integral part of this article’. By that virtue, the fundamental principles of consistency and equality (in law) mandate that whatever is done unto him, be also done unto me. Anything else, in constitutional jargon, will be a violation of Article 25 of the Constitution (discrimination).
Let me begin with a slight background for those who are unaware of all that has transpired: On Tuesday, Babar wrote an op-ed piece, which was critical of some of the jurisprudential trends emanating from the honorable Supreme Court. The article was published in Dawn, since The News International refused to publish this piece (as Babar’s weekly column), alleging that it was ‘unbalanced’. That same day, the contents of this article were highlighted (with praise!) in a programme on Geo TV. Thereafter, almost instantly, the content and context of this article became the topic of discussion across all tele- and social-media waves. As expected, soon enough, this piece caught the attention of the honorable judges of the apex court, who viewed it as a tremendous act of insubordination (by a former of the legal fraternity). Immediately, contempt notices were issued to the publisher as well as the media-giant that telecasted Babar’s opinion. The matter, soon enough, will be taken up for ‘dispassionate’ adjudication.
To assess the degree of Babar’s ‘contempt’ (the factum of which seems to already be clear to the honorable Court), it is important to take a closer look at the contents of his article. The piece, written in bold prose, starts by disagreeing with the judgment of the honorable Supreme Court in the matter pertaining to the presidential election schedule, and then goes on to identify four distinct themes that have emerged in the jurisprudence of apex court since the restoration of judges. First, Babar’s piece points out, is the manifest streak of the court, having been restored through a mass-movement, to view itself as an institution that imbibes the will of the people and, as a consequence, sometimes surrenders to the temptation of appeasing the ‘populist’ sentiment. Second, the article highlights, is the trend of the Court (in comment and in judgment) to hoist the flag of morality as the new doctrine of social reform. Third, the piece points out, is the apex court’s symbiotic “demand-supply” relationship with the media, where both feed off each other, generating sensational headlines as well as suo-motu action. And fourth, as a consequence of media-propelled suo-motu notices in the service of ‘moral’ and ‘populist’ causes, the honorable court intervenes in the domain of other institutions, dispensing with the slight inconvenience of impartial adjudication and due process of law that stands in its path. To this end, Babar points out that once a populist suo-motu has been taken for some alleged ‘mega-scam’ (based on newspaper reports), the honorable court seems only to be interested in arrests and recoveries, instead of first determining culpability and guilt. And this approach of the court leaves no room for other institutions (including investigation and prosecution) to afford fair trial to the individuals involved.
In making his point, Babar points towards the recent proceedings in the EOBI case. True as it may be, quoting this example, in retrospect, was perhaps Babar’s folly. As it turns out, some time back (not presently) Babar served as a lawyer (not the legal advisor) to the EOBI. Taking this as prima facie motive, the honorable judges of the apex court, without affording Babar an opportunity of being heard, insinuated that Babar’s critique of the court is somehow related to the fact that the court has taken up the matter of EOBI. And surprising as it may be, this character assassination (for the lack of a better phrase) has been the honorable court’s retort to a young man who has dared to fall out of line. And, as if on cue, one particular media channel has advanced the court’s crusade in the days that followed.
Who, with dispassionate intellect, can claim that Babar’s conclusions are without merit? Is it not true that countless individuals, including several legal experts, disagree with the standard of justice being meted out by the court? Have the contours of Article 184 not been expanded to swallow other institutions? Can the NAB and FIA officials dare submit a report that is not to the liking of the bench? Did the line between the accused and the guilty not blur during the Haj Scam, Ephedrine case, or the NICL scam? Was the same standard applied when the accused was a certain doctor of judicial lineage? Can we really deny that the court has eyed populist sentiment, and invited media-headlines, as a regular feature of justice? Were journalists a permanent fixture of the courtrooms before? Has the phrase “we appeal to the chief justice” not become a regular part of our news-feed diction?
Perhaps Babar should have started his article with Iqbal’s line “Khugar-e-hamd se thora sa gila bhi sun le” from his timeless poem Shikwa. It is unfortunate that, in the ongoing character-assassination of Babar (in the courtroom as well as on one particular TV channel), everyone has forgotten that Babar, not so long ago, was the staunchest supporter of the lawyer’s movement and the rule of law. And perhaps this exactly is Babar’s fault: he has been a staunch supporter of ‘Rule of Law’ – and not the ‘Rule of Judges’. His writing prowess and intellect has always defended the idea of constitutionalism – not the phrase of pater familias. And his loyalty swears allegiance to the empire of law. Not to the seat of any judge.
And if this is the ‘crime’ for which he is being punished, then let us all partake in the noble honor of being called ‘guilty’ of the same. If the writings of a thirty-something-year-old can strike that secret chord of truth that invites the wrath of the pater familias, then let us all reach for our pens. If speaking truth to power is an act of contempt, then let us all drink from this fountain of insurrection. Let us join, in spirit, with the countless poets, scholars and heretics, throughout the checkered history of our nation, who have been incarcerated for voicing their conscience.
Our solitary voices are often drowned in the chaos of society. Our individual frustrations often get buried under the weight of our helplessness. But our combined voice, our mutual faith, our shared dreams, and our collective passions are more powerful than any threat, in law or in fact, that can be hurled at us. And for this reason, above all, if any part of Babar’s voice has resonated with you, it is time to step forth and be counted.
And in this spirit, let it be known to all that today, for this brief moment in time, I am Babar Sattar.
The writer is a lawyer based in Lahore. He has a Masters in Constitutional Law from Harvard Law School. He can be reached at: email@example.com –