Thursday, February 14, 2013

From the Theatre of D-Chowk to C.R. 1


“We are told that the little creature called the ermine is so acutely sensitive as to its own cleanliness, that it becomes paralyzed and powerless at the slightest touch of defilement upon its snow-white fur.... And a like sensibility should belong to him who comes to exercise the august functions of a judge.... But when once this great office becomes corrupted, when its judgments come to reflect the passions or the interest of the magistrate rather than the mandates of the law, the courts have ceased to be the conservators of the common weal, and the law itself is debauched into a prostrate and nerveless mockery.”
Harrison v. Wisdom, 54 Tenn. (7 Heisk.) 99, 112 (1872) (italics added)

So captured the Tennessee Supreme Court the essence of the judicial ermine’s commitment to “purity and justice” and to “the abandonment of all party bias and personal prejudice.”

Perhaps H.G. Wells was also right, “In the Country of the Blind the One-Eyed Man is King.”

So, lo and behold, justice has been served. The spectators are amused with the show, the commentators are delighted with extra fodder at their pulpits, the public servants don’t care because they are the law regardless of what one might think, and the SpongeBob politicos giggle in their dreamworlds on the naivety of all because there would always be ways to beat this rotten system.

In disposing of Dr. Tahir-ul-Qadri’s petition against the constitution of the Election Commission on the question of admissibility, not merits, that is a lack of locus standi and mala fide intent because the applicant was a dual national, the Supreme Court has put itself into a blind alley.

Simply put, the Supreme Court’s decision sets an extremely dangerous dictum, otherwise bereft of any substantive constitutional or statutory framework to rely on, with the lone exception of the constitutional bar on being a member of the Parliament, that the dual nationals of Pakistan cannot be trusted in matters of national importance.

Prima-facie, this dictum has indirectly and instantly created second-grade Pakistani citizens and raised several questions. For instance:
Would the Supreme Court now define a “dual national” and also define (aka legislate) the fundamental rights and privileges of the dual nationals of Pakistan?
Would this dictum apply to Pakistanis who hold a second passport/citizenship or to everyone who holds a permanent residence card of another country but did not formally acquire a second passport/citizenship?
Would the Supreme Court now define “benchmarks for trustworthiness of a Pakistani citizen”? Who is more loyal, trustworthy and reliable: people with single citizenship or dual nationals, and why?
Would the Supreme Court’s dictum apply only to the parliamentarians because the Constitution said so or to all and sundry in the public service, such as public servants, judges and other holders of public office including political party office-bearers? And if so, when would CJ Chaudhry’s Court deliver this justice? After all, at present, the only institution other than the Parliament which bars entry of dual nationals is the military.
What would be the impact of this dictum on the dual nationals’ rights to property and investment in Pakistan, especially when these are in locations, institutions and projects of national importance and their loyalty and trustworthiness is now purportedly questionable?
Would the Supreme Court rationally contrast the political and economic harms done to Pakistan by people with single citizenship vis-à-vis dual nationals?
Would the Supreme Court care to provide for the basic needs of tens of thousands of families across the country who have been all but forgotten by the political and judicial system being perpetuated by the Court, who survive on the remittances of their dual national family members abroad, and whose basic rights apparently do not exist?

Judges speak through their decisions and judicial officers are not supposed to play to the galleries. Chief Justice Warren Burger commented, judges rule on the basis of law, not public opinion, and they should be indifferent to pressures of the times.”

So, despite serious differences with Dr. Tahir-ul-Qadri, one is constrained to say that it was very unwise and perhaps a travesty of justice to disallow hearing of his petition on the grounds that he was a dual national and was thus untrustworthy. In fact, the handling of Dr. Qadri’s petition by the Supreme Court egregiously violated fundamental tenets of jurisprudence, and has rather exposed the sharpness of our jurist minds.

Three cardinal principles of jurisprudence need to be reiterated here: Firstly, don’t shoot the messenger. Secondly, when the intent is not clear, a court must not construct its affect as an implied intent, for every implied intent must be free of any doubt. The onus of proof in such a situation will rather awkwardly fall on the court to demonstrate and prove the mala fide of a person being questioned, lest it becomes bias on account of obstinacy or arising out of preconceived notions. Sir Edward Coke’s maxim, ‘actus non facit reum nisi mens sit rea’ (an act does not make a person guilty unless (their) mind is also guilty), albeit tangentially relevant to questions of constitutional law, also entails an unequivocal proof of culpability. So it may be better to err on the side of the law rather than prejudge a person/plaint. Thirdly, all are equal before the law and are entitled without any discrimination to equal application and protection of the law.

Regretfully, it is Jurisprudence101 but let us quickly review how it panned out. Firstly, the Registrar’s Office could have returned Dr. Tahir-ul-Qadri’s petition, objecting on its admissibility in the first instance, instead of the Court shedding its judicial ermine, publicly humiliating Dr. Qadri and entering into a mud-slinging row inside the Court. The messenger was shot down with much fanfare. Secondly, once the petition was admitted, there were several legal options for the Court to ensure that the petitioner was not prejudged but rather heard on the merits in the broader interests of the Court and the justice, and that things still stayed the course. Nonetheless, intent was constructed and imposed with fanfare. Thirdly, and interestingly, one is bewildered by the judicial contradictions and inconsistencies when this very Court had earlier allowed, admitted and heard presumably dual nationals in other matters of national importance such as Mansoor Ijaz, a Pakistani-American, and Shafqatullah Sohail, a Pakistani-Canadian, in the infamous MemoGate scandal in 2011, and a Pakistani-British Lord Nazir Ahmed’s ‘statement of facts’ in support of Mian Nawaz Sharif’s return from the exile in 2007.

In his book, “Reading Law: The Interpretation of Legal Texts,” Justice Antonin Scalia of the U.S. Supreme Court has discussed how judges should decide difficult cases and cautioned that judges should interpret words, not intent since people are not governed by the drafter’s intent; people are governed by laws, though others like Justice Stephen Breyer offer a conditional exit that judges should pay attention to a provision’s purpose when the language is not clear.

The Supreme Court now faces a critical challenge to its credibility. Would it be able to enforce its trust deficit in regard to dual nationals in other sectors of the country? Will dual nationals, being inferior, second-grade Pakistanis, have nothing to say or do about the state of affairs in Pakistan in the future? If so, then one wonders why not only the Government of Pakistan keep hounding the dual nationals abroad to remit moneys to Pakistan but also some top politicians keep running their politics in Pakistan from funds raised abroad and even the artists, singers and performers would not lose an opportunity to travel abroad and milk the dual nationals. Is it immaterial to remind here that there are over 6.3 Million dual nationals overseas (end 2010) and that overseas Pakistanis’ remittances are the second largest source of foreign exchange earnings after exports (remittances are likely to reach USD~14 Billion in FY2012-13, which by comparison now exceed Pakistan’s textile exports and equal about 58% of the total exports)? Is it also immaterial to remind here that many of the first responders to the recent floods and earthquakes in the country, including assisting in the stabilization and evacuation of Malala Yousafzai to the U.K., were dual nationals?

Chief Justice Charles E. Hughes of the U.S. said, “at the constitutional level where we work, ninety percent of any decision is emotional. The rational part of us supplies the reasons for supporting our predilections.” A vital bit of that rational part was eloquently spelled out by Lord Chief Justice Hewart, “justice should not only be done, but should manifestly and undoubtedly be seen to be done.”

Regretfully, the Chief Justice seemed more inclined towards making a political statement and playing with populist sentiments on the streets and probably disregarded the future interpretations and applications of his decision. In acting so, he has not only played in the hands of those who wanted to make the Supreme Court controversial but he has also hurt the feelings of millions of overseas Pakistanis and possibly antagonized many. One may hope that it wouldn’t be long when the Brother Judges would realize these failings and revisit and review this dictum.

Pakistan ka Khuda Hafiz!

No comments:

Post a Comment