Monday, June 25, 2012

Supreme Court's decision is terribly flawed, deploys legal sophistry

By Yasser Latif Hamdani

The Cabinet Mission Plan, which was accepted by both Congress and Muslim League in May of 1946, was a rare glimmer of hope for the resolution of all outstanding disputes between the two major parties of the subcontinent and for a while, it seemed that India was headed towards a federal future, which was to the liking of all stakeholders. Unfortunately, what followed was a disastrous miscalculation on the part of the Congress Party, ironically against better counsel from its own president, Maulana Azad. It centered on the interpretation of the grouping clause of the formula. The formula provided group federations A, B and C, which each consisted of certain provinces, with freedom of opting out from a federation. The position of the Cabinet Mission was that this opting out could happen only after the first elections. That was the interpretation the Muslim League also accepted. Congress however insisted that opting out actually meant that provinces could choose not to be part of a group federation ab initio, a position which was counter-productive to the whole exercise. In a bid to resolve the crisis, Viceroy Lord Wavell held a separate meeting with Congress stalwarts, Gandhi and Nehru. Gandhi and Nehru argued, without realising the irony of their position, that it was not what the Cabinet Mission thought the plan meant but what they interpreted the plan to mean that counted. Flabbergasted, Wavell is reported to have said, “Gentlemen don’t talk to me as lawyers but as reasonable men,” to which Gandhi and Nehru, who other than their training in law had very little to do with the practice of law, responded with one voice: “But we are lawyers!” The rest, as they say, is history.

Tragically, the events of recent months in our country owed their traumatic birth to the aforementioned misplaced legal sophistry in a political realm. That has once again shown what happens when lawyers — in this case lawyers elevated to the benches of the highest court in the land — choose to interpret documents in a way that suits them instead of taking a document in the spirit in which it was drafted. Of course, this is part of what being a lawyer is about and this is what lawyers are paid for while representing their clients. These are tactics to be employed strategically to the best advantage of one’s client. Statesmen have no such luxury because the greater interests of a whole people depend on the steps they take. Similarly, judges, once elevated from their status as lawyers, are duty bound to proceed according to the spirit of the constitution and to attach the most direct and logical meaning to constitutional provisions. In the view of this writer, the Supreme Court has resorted to blatant legal sophistry in both the way it has dealt with the contempt case and now the disqualification of Pakistan’s unanimously elected, longest serving Prime Minister, Mr. Yousaf Raza Gilani. As Justice Katju, formerly of the Indian Supreme Court, wrote in his precise opinion that the Supreme Court should not have overruled 248(2) and asked the prime minister to write a letter to a foreign authority to initiate proceedings against the President of the republic, which is absolutely barred by the constitution of this republic in clearest terms.

The Supreme Court did this again when it overreached and overturned the Speaker’s ruling against reference to the Election Commission for disqualification of Mr Gilani as a member of the National Assembly. The language of the constitution is quite clear in this matter. The Speaker is the keeper of the national conscience and the power vested in that office was to be a safety valve against the judiciary treading on legislative space. The order in question imputes redundancy to Article 63(2) of the Constitution and that is not all that it does. It introduces the new doctrine of automatic disqualification. This is obviously the most dangerous outcome of this opinion because it means, in essence, that automatic disqualifications can occur at any time. The door has been opened to the judiciary deciding who is and who is not automatically disqualified. It therefore makes Article 69 of the Constitution redundant as well and means that justices sitting in the Supreme Court can decide who is to be the chief executive of the country. The order in question therefore is Pakistan’s version of Bush v Gore 531 US 98 (2000). That judgment is infamous for underscoring the failure of the US constitutional system and of course, the world has had to live with the consequences.

Many have hailed this order as an example of Pakistan’s ability to deal with a constitutional crisis in a legal way without a breakdown via an army coup. This is an unfortunate assertion. The problem with military coups is not that the military is carrying it out but that a coup subverts the constitutional and democratic process in the country. It does not matter if the colour of one’s uniform is khaki or black. The basic feature of Pakistani constitution is the separation of powers. This means that in their respective spheres the executive, legislative and judicial arms have to remain separate, unfettered and independent. This applies equally to an executive infringing judicial independence and the judiciary impeding the constitutional democratic process. With respect to the honourable Supreme Court therefore, and it is hard to muster such respect in light of the recent events, one is forced to conclude that the short order was partisan and is a major setback to democracy.

The future historian will no doubt look back and conclude in favour of the righteousness of Mr Gilani’s position. As for the question of who is the longest serving prime minister of the country, actual reality and not legal fiction determines that. The Pakistan People’s Party and its prime minister have demonstrated statesmanship of the highest order in accepting, despite reservations, the Supreme Court’s decree. For this, they deserve to be lauded generously.

The writer is a practising lawyer. He blogs at http://globallegalorum.blogspot and his twitter handle is @therealylh


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