Tuesday, May 26, 2009

The Supreme Court as a Political Player

In its decision overruling the Lahore High Court and the Dogar Supreme Court and declaring Nawaz and Shahbaz Sharif eligible to contest elections, the Supreme Court has made a political judgment and seemingly ignored the legal factors at play.

In declaring the Sharif brothers eligible, the Supreme Court has relied mainly on a technicality. Here is the relavent portion of their initial judgement:

The mandate of Article 225 of the Constitution has not been appreciated in the context of the instant cases. This Article places a bar to challenge an election dispute except through an election petition under the law i.e. the Representation of Peoples Act, 1976. In exceptional circumstances, however, the qualification or disqualification of a candidate can be challenged under Article 199 of the Constitution provided the order passed during the election process is patently illegal, the law has not provided any remedy either before or after the election; and the alleged disqualification is floating on record requiring no probe and enquiry.

Here is what Article 199 of the Constitution says with regards to elected officials:

Subject to the Constitution, a High Court may, if it is satisfied that no other adequate remedy is provided by law...requiring a person within the territorial jurisdiction of the Court holding or purporting to hold a public office to show under what authority of law he claims to hold that office

First, I think the Supreme Court is unduly narrowing the scope of Article 199 by claiming it can only be invoked in "exceptional circumstances." More importantly, this judgement shows that the Supreme Court decided what verdict they were going to arrive at and then tried to come up with a way to make this pre-determined verdict sound vaguely legal. Nowhere does it say that this clause can only be invoked if the "alleged disqualification is floating on record and requiring no probe and enquiry." In my opinion, the only reason this language has been employed is that in the Sharif case there is a dispute over a document that would definitevely prove wheter the Sharifs are eligible to stand for elections. The Sharifs claim that they were granted a full pardon by then President Musharraf, while Musharraf contended that he commuted their sentences without pardoning them. Now, since both parties seem reluctant to release the text of the agreement, I think it is incumbent on the courts, as the only competent bodies with the ability to force the production of this document, to hear this case. Indeed, both the Lahore High Court and the Supreme Court have been derelict in not demanding that the agreement be presented to them. Once the text is public, the judgement becomes relatively simple; either the Sharifs are convicts who are not eligible to stand for elections or they have been pardoned for their crimes and are free to stand for political office.

On the presidential pardon, the Supreme Court had this to say:

To allege that it [the presidential pardon] was conditional or qualified pardon required deeper probe which exercise entailed factual enquiry.

On the face of it, this is exactly correct. I just have no reason, other than plain politics, why the court did not undertake this factual enquiry. Isn't adjudacating disputed agreements within the purview of the Supreme Court? Many members of the judiciary certainly seem to think everything else, including the lyrics of pop songs, is properly investigated by them.

Another point I have in relation to this judgement is this sentence:

Realizing the exceptional and extraordinary events relating to unconstitutional removal of Judges of the Superior Courts which in the judgment under review has been described as, ““enforced by a brutal force, by deviating from constitutional provisions,” triggering an unprecedented nationwide movement, culminating in the restoration of those Judges, and during the interregnum, non-appearance of petitioners before the Courts then constituted could neither be termed as contumacious nor reflecting acquiescence, the findings of fact rendered on such assumptions merit to be interfered with in the review jurisdiction.

The Supreme Court is playing politics with this again. So far, they have not ruled on the constitionality of Musharraf's actions, most likely because whatever deal the PCO judges hashed out to ensure their return stipulated that they would not take Musharraf to task. But until they specifically rule on the constituionality of Musharraf's actions, those actions are legal under the law and the Supreme Court certainly has no right to use their supposed unconstitutionality as a factor in their judgements.

All this said, I do think it is patently unfair that the Sharifs are not allowed to stand for election while a vast number of PPP convicts pardoned under the NRO, are eligible (Please note that while I think their disqualification is unfair I do not think it is illegal). There are ways this situation can be rectified within the confines of the law.

1) The Supreme Court can make the NRO non-applicable. Legally, it cannot dissmiss the NRO itself as unconstitutional as the executive's authority to pardon convicts and commute sentences is absolute. But it could declare Musharraf's election to the presidency illegal, thereby making all the orders passed by Musharraf inoperable.

2) The president can expand the scope of the NRO by pardoning the Sharif brothers.

The main problem I had with the Justice Chaudhry Supreme Court is that its members saw themselves as political players, even before Musharraf dismissed them and essentially forced them to become politicised. Their judgements showed that they regarded themselves as policy makers and not disinterested observers whose only job was to enforce the Constitution and the rule of law. The Sharif judgement shows that nothing has changed in that regard.


Ahsan said...

Worrying about the judiciary is so 2008, Bubs. Get with the times.

bubs said...

Hahahaha. It's really quite amazing (although not all that surprising) that no one seems to be interested in following up what the Supreme Court has been up to. The media's attitude seems to be, "Great, you're back, do whatever the fuck you want."

Pagal_Aadmi_for_debauchery said...

So is the argument that the Pakistani Supreme Court should not be the final arbiter of the Constitution and does not have Madison v. Marbury powers?
Or is the argument that the Pakistani Supreme Court should defer to the 'political question' doctrine and not touch this issue.
I am not sure if the post was written by a U.S. lawyer so a brief explanation :)
Madison v. Marbury: US Supreme Court case which made the US Supreme Court the final arbiter on the interpretation and application of the Constitution thus negating the co-equal branch of government doctrine in this one aspect.
Political Question: Doctrine according to which the US Supreme Court will not rule on issues which are essentially political in nature.
Thanks for the post though. I have been fascinated by the Pakistani judiciary since the protests (hell, I even went to a solidarity rally of the US lawyers for the Pakistani lawyers. when i got there, they asked me to be one of the speakers because I guess I was the best substitute for a Pakistani lawyer, even though I am Indian!)

Nabil said...

GO *insert president name* GO
Restore my Judiciary!

oh shit..=|.

karachi khatmal said...

@ bubs

on behalf of the media, there are two things.

first of all, none of us can understand the pretty simplified explanation you have posted here, let alone the actual fucking ruling.

secondly, as ahsan said, sooooooo 2008.

bubs said...

PAFD: I'm not a US lawyer, or indeed a lawyer of any kind. I based this post on my understanding of the constitution and law. The Supreme Court is the final arbiter on the interpretation of the Constitution (but they can be overruled by the Federal Shariat Court on matters pertaining to Islam). But since it is much easier to amend the constitution in Pakistan than it is in the US, the Supreme Court here doesn't hold the same power.

Karachi Khatmal: Cliff notes. I think Nawaz Sharif should be allowed to stand for election but the Supreme Court should not have allowed him to do so.