Astrange spectacle caught my attention during my law school days at Harvard back in 2007. It was drizzling one day as I walked to my afternoon class. From afar, I could see a large number of people dressed in black suits holding umbrellas and surrounding the entrance to the law school. Curious to know what had happened, I, too, made my way to the middle.
Lo and behold, what I saw in front of me was a funeral. That’s right, a funeral! Right at the entrance to the law school. In the middle of it, all was a tombstone. A tombstone that read: Rest in Peace the US Constitution. Curious to know some perspective behind all the drama, I asked one of the attendees to explain what this was all about. He told me that the Bush Administration’s actions in conducting military trials outside the purview of the US Constitution and detaining prisoners in Guantanamo Bay had invited this protest.
Continuous pampering of "rogue lawyers" represents "clear and present dangers" for Judiciary's moral authority in Pakistan. Best minds in Bar and Bench need to join heads before its too late! Courts can function if realm survives! https://t.co/1pd6wHgO38 via @@GVS_News
— Moeed Pirzada (@MoeedNj) December 14, 2019
In the words of the organizers, the US Constitution was dead since its saviors (judges) had failed to uphold its tenets. I was asked if I, too, wanted to sign a petition (something I did) and to shower petals as a mark of respect for the deceased. Again, something I happily obliged. Fast forward to 12 years. Let us take stock of what all has been happening (or not happening) with Pakistan’s Constitution and our legal system.
Perhaps it’s time we considered a funeral of our own with all the pomp and glory accorded to such glorious events. What makes me say all this? Some recent events unfolding before our eyes that have left indelible marks on our legal, social, and political fabric. That these will stay with us for times to come should be deeply worrying for all of us.
The Lawyers’ Attack
Let’s start with the wreck that was made of the law of the country by the lawyers – the proverbial guardians of our legal system – by attacking the Punjab Institute of Cardiology. Around three weeks have passed since the event, but there are no signs that our Honourable Supreme Court intends on taking suo motu action under Article 184(3) of the Constitution.
I have argued in the past that Article 184(3) is a double-edged sword. It provides the Supreme Court with suo motu jurisdiction by enabling it to assume jurisdiction in respect of matters involving a question of “public importance” with reference to the enforcement of citizens’ “fundamental rights”. On the face of it, a legal weapon of last resort.
But then it’s a double-edged sword, primarily, because Article 184 (3) is a policy weapon and a slippery slope with no end in sight. We saw Justices Iftikhar Chaudhry and Mian Saqib Nisar take suo motu action at will and weaponize it to slay the specter of whatever they perceived were the “ills” afflicting our society.
“We direct the law enforcement agencies to strive their level best to apprehend the fugitive/convict (Musharraf) and to ensure that the punishment is inflicted as per law and if found dead, his corpse be dragged to the D-Chowk (in front of the Parliament House), Islamabad, Pakistan, and be hanged for three days.”
Para. 66 of the Judgment of the Special Court on ex-President Gen (retd) Pervez Musharraf by Peshawar High Court Chief Justice Waqar Ahmad Seth
The Result? The rather overzealous exercise of this power ended up blurring the separation of powers between the three branches of government and transplanting the will of the judiciary for that of the executive. The road to hell, as they say, is paved with good intentions. An example of the hell unleashed by unrestrained suo motu power is the Reko Diq fiasco that resulted in the USD 6 billion penalty on Pakistan.
Another example is the Supreme Court sponsored Dam Fund, which was a non-starter and a national embarrassment. We also saw public officials getting pulled up, insulted, and demeaned in Court. Something terrible, if not an outright anathema for the system. Going back to the lawyers’ debacle, while there were words of condemnation here and there, what was missing was an across the board outright condemnation of the actions and calls for accountability of those involved.
Read more: Provocation and the Lawyers
If these aren’t signs of a deep-rooted decay eating away at our legal system, then I don’t know what is! Perhaps what’s even more worrying is that the Supreme Court has shown no signs of taking suo motu action in the matter. It has conveniently chosen to let the scales of justice remain tilted on the side of tyranny.
Forsaken by the law, the oppressed creatures that are this country’s citizens, remain tied to the fast disappearing hope that one day the law shall assert its authority and stand to protect their rights that continue to be trampled by the mighty with no signs of any accountability. Article 184(3) and its talk has disappeared. It remains buried somewhere in the pages of our Constitution.
The Season of Bails and more Bails
Let’s get this straight: in every developed legal system of the world, accused are deemed innocent until proven otherwise and have the right to seek bail for certain crimes deemed ‘bailable’ by law. The law prefers that a hundred guilty may be set free, but not one innocent be wrongly convicted. Lofty legal maxims aside (something that finds a place in our jurisprudence in equal measure), our criminal justice system has failed us here as well. Let me explain.
On the one hand, we have the National Accountability Bureau Ordinance 1999 (NAO), whose many provisions, especially those ousting jurisdiction of courts to grant bail, are arguably one-sided. On the other hand, we have a weak prosecutorial system that fails to prepare watertight cases resulting in successful convictions. The failure of the system couldn’t be more stark: even robust laws don’t guarantee convictions.
We have heard stories about cases of mega billions of corruption being unearthed, grand proclamations about the guilty being brought to task. Still, the end result has remained the same: the high and mighty have walked away without any conviction. One is compelled to conclude that something is seriously wrong somewhere with our justice system as it is consistently and repeatedly failing to achieve any tangible results.
In between the process of investigation and conviction (and recently after conviction), we have seen our courts grant bail to accused, primarily those charged with white-collar crimes. More troubling is to see the courts become controversial. Day by day, we are getting further deeply polarized and see two competing narratives at play. On the one hand, we see the governmental harping on its “anti-corruption” mantra and conviction of opposition bigwigs whom it alleges to have indulged in corruption.
On the other hand, we have the opposition parties label it vindictive justice and a witch hunt. The net result is two things: first, no case is seen to reach fruition. Second – and perhaps even worse – is a loss of faith in the legal system, something worse than its physical collapse. Over time, moral authority has eviscerated from our legal system, leaving in its wake chaos and uncertainty.
The latest fiasco being the exit of Nawaz Sharif to the UK on medical grounds. We all know the politically charged days when the government insisted on an indemnity bond of Rs6 billion before allowing him to exit the country and the opposition vehemently resisting such demand. In the end, the Lahore High Court ordered that the government was not justified in seeking an indemnity bond and ruled that an assurance (read: guarantee) that Nawaz Sharif would return to the country upon completion of medical treatment would suffice.
Read more: Time to teach Law to Lawyers
That no one was willing to take the responsibility till the last minute for his exit left many questions unanswered. Is our judicial system so weak that we are unable to extract a financial guarantee from a convict who has squandered billions and who may never return to the country to complete his sentence or face trial for other cases? And I am not even talking about allowing him to exit the country in the first place!
Nawaz Sharif’s exit from the country after posting a guarantee on a Rs50 stamp paper resulted in the erosion of whatever little faith remained in the country’s legal system. Questions left in the wake of his exit were: what about the thousands of poor prisoners rotting in Pakistan’s jails? Shouldn’t they too be set free to get medical treatment if they furnish a guarantee that they will resume their sentence after completion of medical treatment? Do we have one law for the high and mighty and another for the destitute and the poor? I think we all know the answer to this by now.
The General’s Trial
That brings me to the latest chapter penned in our country’s rather inglorious judicial history: the trial of General Retd. Pervez Musharraf. Let’s be clear: Musharraf’s conviction by the Special Court is a political first. Prima facie it strengthens the rule of law when a General who usurped power through unconstitutional means and ruled the country for nine years was tried, convicted and sentenced. Right? Wrong.
As has generally been the case with our legal system, here too, it has failed us. Some disturbing precedents and prejudices have come to the surface. And despite all the drumbeats of having established the might of the rule of law, what we are left with is another ugly blotch on our legal system.
There is no denying that Musharraf intentionally delayed his trial, made a mockery of court proceedings by skipping hearings, and was helped by the system to evade accountability. But there are fundamental issues with his trial and conviction, notwithstanding how Musharraf may have played the system.
First, Musharraf wasn’t tried for the original sin that he ought to have been tried for: the 12 October 1999 coup. Second, with due respect to the argument put forth by some lawyers that Musharraf’s trial was fair, in my view, his trial failed the fairness test on many counts. The trial was a violation of Article 12 of the Constitution, which prohibits retrospective punishment.
Musharraf’s trial was for the proclamation of emergency in 2007 through which he held the Constitution in ‘abeyance’ – a word missing in the original text of Article 6 of the Constitution dealing with the crime of High Treason. The word was added to Article 6 in 2010 vide the 18th Amendment to the Constitution. In other words, Musharraf’s actions of holding the Constitution in ‘abeyance’ were not covered in the original Article 6.
My fellow brethren (the blackcoats) who pulled the oxygen masks from terminally ill patients in the Punjab Institute of Cardiology would be best placed to have the honor of taking out a funeral procession for our Constitution. Those who aren’t concerned about the demise of our legal ethos or the future of the legal system are perhaps best placed to bury whatever little remains of our constitutional dispensation
What was missing (term ‘abeyance’) when Musharraf was charged and tried for the crime of High Treason couldn’t be cured through a retrospective amendment to the Constitution in 2010. That’s something illegal and unconstitutional. All this leaves the impression that his trial and conviction were vindictive and with a mala fide intention. Here too, justice was neither done nor seen to be done.
But the legality of his conviction is a matter on which lawyers may reasonably disagree on points of law. The troubling part of the judgment is the famous Para. 66, which frankly sent shivers down my spine. If we had two overzealous Chief Justices in the form of Justices Iftikhar Chaudhary and Mian Saqib Nisar, who did incalculable harm through unrestrained use of Article 184(3), then in the form of Justice Waqar Ahmed Seth of the Peshawar High Court who ordained in Para. 66 of the judgment that Musharraf be sentenced to death and his body hung in D-Chowk for 3 days, we have been pulled back to the medieval dark ages where burning at the stake and crucifixion were the norm.
That’s a ghastly parody of justice which has no place in the 21st Century. Period. Even in Pakistan, where we routinely deal with a Mount Everest of absurdities on a daily basis, Justice Seth’s proclamation is emblematic of the extent to which the rot has seeped in our legal system. Clearly, legal education, degrees, and social stature are no guarantee of propriety in words and deeds in this country.
That Justice Seth may one day end up being elevated to the Supreme Court of Pakistan should send another round of shivers down everyone’s spine who wishes for this country to remain a respectable member of the comity of nations in the 21st Century.
It remains to be seen whether the government (with a divided house) will send a reference against Justice Seth to the Supreme Judicial Council (SJC) for his removal. For me, it is beside the point whether or not the matter ends up in the SJC. The damage has been done. Words have been uttered, which, even if they are expunged from the judgment, will stay embedded in our national psyche for times to come.
If as a people we have reached the point where dragging corpses and crucifixion is being judicially ordained, then let me say this: we may be reaching a point of anarchy where we may be left with no choice but to rewrite our social contract and rethink and reimagine our place in the 21st Century.
The squalid wretchedness of our legal system is a heart-wrenching. Any efforts claimed to have been expended by the government and judiciary in fixing our ailing legal system have left us worse off than when we started. It is with a heavy heart that I have been hearing and watching the legal developments unfold.
And I am sure I am not alone. I am joined by thousands of concerned Pakistanis, including lawyers, judges, and citizens who worry about the future of this country and its legal system. From the lawyers’ criminal acts to the lack of faith in our judicial system to Musharraf’s sentence, perhaps it is time for another funeral similar to the one I witnessed in my law school days.
But then, this time around, perhaps my fellow brethren (the blackcoats) who pulled the oxygen masks from terminally ill patients in the Punjab Institute of Cardiology would be best placed to have the honor of taking out a funeral procession for our Constitution. Those who aren’t concerned about the demise of our legal ethos or the future of the legal system are perhaps best placed to bury whatever little remains of our constitutional dispensation.
Hassan Aslam Shad is the head of practice of a leading Middle Eastern law firm. He is a graduate of Harvard Law School, U.S.A., with a focus on international law and corporate law. Over the years, Hassan has written extensively on topics of law including public and private international law and international relations. Hassan has the distinctive honor of being the first person from Pakistan to intern at the Office of the President of the International Criminal Court, The Hague. He can be reached at: firstname.lastname@example.org. His Twitter handle is: @HassShad. The views expressed in this article are the author’s own and do not necessarily reflect the editorial policy of Global Village Space.