A step too far

The Supreme Court recently released its detailed judgment on Article 63A. Written by Justice Munib Akhtar, the judgment holds that when a parliamentarian votes contrary to party directions on matters like the budget and votes of no-confidence, not only is the parliamentarian subject to expulsion but their vote itself is to be disregarded.

Justice Akhtar begins with the contention that judges are freer when it comes to constitutional interpretation than with respect to statutory interpretation. This is because, while statutes “are designed to meet the fugitive exigencies of the hour,” constitutions must “endure for ages to come.” He then suggests that the line between interpretation (permissible) and “reading in” (impermissible) is so fine as to be irrelevant.

The judgment continues by discussing Article 17(2) (re every citizen’s right to form a political party) and notes that this provision has been interpreted purposively and expansively by the Supreme Court. In the 1988 Benazir Bhutto case, the court scotched General Zia’s plans for non-party elections by saying that the right to form a political party necessarily meant the right to contest elections through them. In 1989, the court held that political parties had the right to be allocated specific symbols so that they could properly fight elections. Finally, the famous 1993 case of Mian Nawaz Sharif held that Article 17(2) included the right of a political party to govern and exercise power.

Justice Akhtar reaches multiple conclusions on the basis of this historical survey: first, that the rights recognized by Article 17(2) are not just the rights of citizens, but the independent rights of a political party in and of itself; second, that these rights must be interpreted to promote the healthy operation of political parties; third, that the defection of legislators negates this “healthy operation”; and fourth, that therefore Article 63A should be interpreted to exclude the votes of defecting parliamentarians. Only in this way, per Justice Akhtar, can one ensure that Article 63A functions in its true spirit – so that it is never needed.

Let’s begin with Justice Akhtar’s theory of constitutional interpretation. Yes, constitutions are normally interpreted expansively. But as noted by the US Supreme Court in Hurtado v California, that is because “the language of the Constitution does not change.” More importantly, Article 63A is not an instance where the language of the constitution has remained unchanged. In fact, quite the opposite.

As originally promulgated, Article 96(5) of the 1973 constitution provided that for a period of 10 years, a vote of no-confidence against a prime minister would require a majority of the total membership of the National Assembly and that the votes of defecting MNAs would be disregarded if contrary to the voting majority of their political party.

In 1977, the constitution was suspended by General Zia. When it was restored in 1985, this entire provision regarding votes of no-confidence was excluded. Thus from 1985 onwards, there was no express constitutional prohibition on defection. That is perhaps why the period 1988-1997 saw a veritable epidemic of ‘horse-trading’, which epidemic was repeatedly and strongly condemned by the Supreme Court in a series of cases.

In 1997, the 14th Amendment added Article 63A to provide for disqualification in the event of breach of party discipline on any issue. This time, however, there was no mention of votes being disregarded. In 1998, the Supreme Court upheld the 14th Amendment via a 6-1 judgment but diluted it (on the grounds of freedom of speech) to say that members of parliament could only be disqualified for breaches of party discipline in relation to parliamentary proceedings, not generally. The lone dissenter argued that Article 63A was entirely unconstitutional. Nobody mentioned the possibility of votes being disregarded.

In 2003, the 17th Amendment introduced text similar to the current Article 63A. The new Article 63A provided that parliamentarians could be disqualified if they voted contrary to party directions, but only in relation to votes of confidence and no-confidence, elections of the prime minister or chief minister, and money bills. In 2010, the 18th Amendment further modified the text of Article 63A to include bills amending the constitution.

Justice Akhtar’s judgment does not address that legislative history. In particular, it never refers to the fact that the requirement to discard dissenting votes was present in the original 1973 constitution, then excluded by General Zia, and then never re-inserted despite multiple amendments to the Constitution regarding that same issue. Instead, the historical references it makes are to the various Supreme Court judgments condemning defection, all of which are from the period 1992-1998 (judgments followed by three separate amendments to the constitution dealing specifically with defection).

For example, the judgment refers repeatedly to Justice Shafi ur Rehman’s judgment in the 1992 Khwaja Tariq Rahim case. That judgment condemns parliamentary defectors in part on the basis that such defections render the voter helpless because “In the normal course, the elector has to wait for years, till new elections take place, to repudiate such a person [while in] the meantime, the defector flourishes and continues to enjoy all the worldly gains.”

This specific problem was fixed in 2003 through the addition of Article 63A and is no longer an issue. Now, a defector can be unseated relatively quickly following his dissenting vote and no longer “flourishes and continues to enjoy all the worldly gains” pending the next election. Similarly, the judgment does not discuss the fact that the constitution was amended three times to deal with the problem of defectors (1997, 2003 and 2010) and that in each case, no express requirement to exclude dissenting votes was inserted, even though the original 1973 constitution had contained such a provision.

The importance of historical context is brought out by the very issue most often cited by Justice Akhtar, the right to privacy. Currently, the right to privacy means something very different in a world of social media and electronic eavesdropping than the traditional physical sanctity accorded to a person’s body or home. It is therefore a topic on which courts have no option to engage in the delicate exercise of elaborating constitutional protections for a new world.

This case is different. Here, the court was not faced with a new topic on which it had to divine the intention of the framers of the constitution. Instead, it was faced with an established and identified problem repeatedly addressed in recent years by parliamentarians, which history the judgment notes was repeatedly brought to its attention.

There are other issues in the judgment. For example, it brushes aside the possibility of a conscientious objector on the basis that no actual example of such a defector was ever cited before the judges. At the same time, the judgment also rejects the possibility of an elective dictatorship by referring to the equally theoretical possibility of: (1) a split between the party head and the head of the parliamentary party; and (2) the removal of an unpopular prime minister through a vote of confidence requested by the president. In other words, the judgment rejects one argument (conscientious objectors) as hypothetical but defends its understanding on the basis of an equally theoretical scenario.

Second, I respectfully disagree with the conclusion that to vote contrary to party directions is the negation of democracy. Pakistan is a representative democracy. Each MNA represents a constituency of hundreds of thousands of voters. It is that MNA’s fiduciary obligation to represent the interests of his voters, which obligation ultimately trumps all other obligations. The mere fact that MNAs have been elected on a party basis does not mean that the MNAs’ obligation to their party trumps their obligation to their voters. In my view, that is why the only punishment expressly provided by Article 63A is de-seating. If and when an MNA is de-seated by his/her party, he/she has the right to seek vindication from the voting public. It is that voting public which will then either justify the dissenting vote or punish the defector. If the dissenting vote is automatically discarded, the voting public never gets to have a say on the issue.

One last point: the judgment states that the “the ideal position is that [Article 63A] need not be actually invoked at all” and on this basis finds within Article 63A, an additional “deterrent effect” regarding the discarding of votes. I concede that a world without any defections may well be a better world than a parliament riven with defections. But, in my respectful opinion, that ‘ideal’ is not the ideal expressed by the constitution itself.

The line between constitutional interpretation and constitutional rewriting may indeed be difficult to identify, but it is not necessary to draw that line with precision. To paraphrase Coleridge, CJ in Southport Corp v Morriss, all one needs is to determine which side of any reasonable line a judgment falls. In this case, my submission is that it falls on the wrong side.

This column appeared in The News on 22 October 2022

Corruption, wealth and vengeance

There is no acceptable form of indigenously acquired wealth in Pakistan. If you were born wealthy, then obviously your ancestors were bootlickers of the British. And if you have become wealthy in your own lifetime then, equally obviously, you are a thief.

For the record, my definition of ‘wealthy’ does not include those upper middle-class individuals lucky enough to own their own house and a few cars. My reference here is to those people who own private jets (or are at least capable of owning private jets). Those people, at least in Pakistan, are deemed to be beyond redemption.

The apotheosis of this attitude can be seen in the Supreme Court’s famous judgment in the Panama Case where Justice Khosa cited Balzac (via Mario Puzo’s “The Godfather”) to argue that: “Behind every great fortune lies a great crime.” Except that Balzac himself never said that. What he said was “behind every unexplained fortune lies a successful crime.” It is that omission of the word “unexplained” – and in a Supreme Court judgement, no less – which reveals so much about our society’s attitude towards wealth.

Where does this aversion to wealth come from?

My entirely unscientific theory is that the basis lies in the nature of wealth in Pakistan. To be more specific, the vast majority of wealth here consists of land. And land is, by definition, the ultimate zero-sum resource. To quote one wag, “they’re not making more of it” (though that may be news to the housing authorities happily reclaiming land from the sea in Karachi).

The problem with a zero-sum resource is that the more somebody else has, the less you have. Hence if somebody else has acquired more land in their lifetime, the natural corollary is that some other people have been deprived of their share.

But isn’t that the case with all wealth? The answer is no. Stocks and shares, for example, are not a zero-sum form of wealth. If somebody successfully floats a company on the stock exchange, they do not automatically make anybody else poorer. But everybody else falls (at least for Pakistanis) in the category of robber barons.

I was reminded of this peculiarity of Pakistani culture by a recent conversation with a dear friend in which the name of a well-known businessman happened to come up. My friend’s immediate response was “scumbag”. When I asked for the basis of his contempt, there was ultimately no justification beyond whataboutery. As in, what about his son being rude to so and so? What about the fact that he attended a famous school? What about the fact that he was not born rich? Could I certify that he had made his money through entirely legitimate means?

Obviously, I could not certify the origins of the relevant businessman’s wealth though I certainly knew enough about him to discredit the standard misconceptions. None of that mattered. So far as my friend was concerned, the burden of proof was on the businessman – and, by extension, on me – to prove that the wealth in question was not ill-gotten.

Does any of this matter? Yes, it does. And for two reasons.

The first reason has to do with the economic growth of this country. If this country is to become wealthier, that in turn requires its citizens to become wealthier. But if to become wealthier is also to invite the scorn of society and to be automatically classified as a “scumbag”, then why bother? Why not take one’s ideas overseas where becoming rich does not automatically mean becoming the subject of veiled – and sometimes not so veiled – taunts? I’m not suggesting that we need to replace the national anthem with Gordon Gecko’s famous “greed is good” speech but perhaps the assumption of innocence can be extended to the wealthy as well.

The second reason pertains to our national obsession with corruption and the proceeds of corruption. As argued earlier, the people of this country have been continuously seduced with the argument that if only the proceeds of corruption can be recovered, then all will be well. The most recent iteration of this argument is in the PTI’s single-minded focus on the “chor, chor, chor” front which has certainly found much traction in the public mind. But the antecedents of this philosophy go back to the PRODA law introduced by Liaquat Ali Khan in 1949, and from there to Ayub Khan’s EBDO law, the accountability laws introduced by Zulfiqar Ali Bhutto and General Ziaul Haq, the Ehtesab Act of Mian Nawaz Sharif and, most recently, the NAB Ordinance introduced by General Musharraf.

So, if anti-corruption laws don’t work, should one simply accept corruption as a fact of life instead?

No. But allow me to elaborate.

First, some degree of corruption is inevitable. Every single country in the world has corruption issues. And please spare me the garbage about how the execution of such and such person proves that China’s growth is a consequence of a zero-tolerance policy towards corruption. There is no shortage of corruption within China just like there is no shortage of corruption in the United States, the United Kingdom or even Switzerland.

Second, given the inevitability of ‘some’ degree of corruption, the issue is not whether corruption is to be socially accepted but the extent to which the state tries to prevent corruption by: (a) reducing regulation; (b) paying high salaries to government officials; and (c) establishing a robust mechanism to punish corruption if and when it occurs.

In my humble view, Pakistan has the worst of all possible worlds. We have a heavily regulated state which gives huge amounts of discretionary power to high officials who are hugely underpaid, not just in absolute terms but in comparative terms, and which tries to prevent corruption by giving hugely discretionary and dictatorial powers to a prosecutorial agency manned by untrained and underpaid officers. So, not only does corruption flourish but the heavy-handed attempts to smash corruption through state-sanctioned thuggery are in fact counterproductive not only because they terrify law-abiding officers away from making any decision but also because the prosecutorial agency lacks any ability to go beyond grabbing people and throwing them in jail.

Let me try and restate my argument in simple terms. Corruption exists because our governance systems are broken. You cannot fix a broken governance system without changing the factors which make the system broken. Hence the solution to corruption is not a bigger hammer with which to smash the corrupt. That approach is tried, tested and failed. All that does is produce self-styled saviours convinced that every problem is a nail which needs an even bigger hammer to smash it. Been there, done that.

One final argument: if there is one thing the commentariat agrees on, it is that things used to be better in the good old days. But we did not have the NAB Ordinance in the good old days. So clearly, the problem (and its solution) lies elsewhere.

This column appeared in The News on 11 October 2022

Reverse-engineering the Supreme Court

Chief Justice Umar Ata Bandial is a good man faced with an impossible situation. No matter what he does, he is likely to be lambasted by one side or another. And outside the world of political cases, cases continue to pile up at the court’s doorstep in frightening numbers. Thus while the SC disposes of about 5,000 cases per year, there is a backlog of about 50,000 cases which is continuing to grow.

So, what to do?

One response is to demand more judges so that they can decide more cases. I am suggesting the opposite: that we set aside high rhetoric and work backwards from that which is possible. My proposal is to ‘reverse-engineer’ the system so that it matches the capabilities of the judges, rather than conceiving of an ideal judicial system in isolation and ignoring the real-life limitations of the judges.

In short, I want the Supreme Court to accept, and decide, less cases.

At a basic level, it needs to be remembered that no matter what the burdens placed on them, the judges of the Supreme Court are still only human. There is a limit to the amount of work they can do.

More importantly, not every case deserves to be heard by the Supreme Court. In particular, cases involving simple factual disputes, like bail matters or rent disputes, do not need to go before the Supreme Court.

Let me try and articulate this point in factual terms. Out of the roughly 5,000 cases decided every year by the Supreme Court, only about 300 cases get reported in the two main law journals (PLD and SCMR). There is no set criteria for a judgment to be reported but normally, a case is supposed to have some degree of either legal or political significance in order for it to be reported. That means only six per cent of Supreme Court decisions are considered to be worth reporting. Which in turn also means that 94 per cent of Supreme Court decisions have no substantial legal or political significance, at least in the considered opinion the gentlemen who review Supreme Court decisions for a living.

One would then expect the few reported judgments to be masterpieces of jurisprudence. Perhaps. I recently flipped through the last two months of reported Supreme Court judgments and so far as I could see, at least half the reported judgments could have been safely removed without any great loss occurring to the world of law.

My point here is not that the learned judges of the Supreme Court are writing bad judgments. My point instead is that the Supreme Court is being overwhelmed with routine cases the vast majority of which do not involve any substantial questions of law. And that is not the job of any Supreme Court. The US Supreme Court, for example, only decides about 100 cases a year, all of which are reported, and almost all of which definitively settle a disputed question of law. The UK Supreme Court also decides about the same number of cases every year.

Yes, one consequence of my proposal is that more high court judgments will be allowed to become final. But if the Supreme Court believes that high court judgments are routinely erroneous, then the solution is to appoint better high court judges, not to review every high court judgment.

The good news (and also the bad news) is that this is largely a self-created problem. It’s good news because it means the problem is not inherent in the system (and is therefore fixable). It’s bad news because it means the problem lies in social expectations of the judiciary (and in the judiciary’s perception of its role).

By way of background, it needs to be understood that the constitution gives three types of jurisdiction to the Supreme Court — advisory, original and appellate.

Advisory jurisdiction is when the president sends a reference to the Supreme Court asking its opinion on a question of law. This happens, on average, once every few years.

Original jurisdiction means that the case is being initiated directly in the Supreme Court, which occurs in two types of cases. First, the Supreme Court has original jurisdiction over disputes between provinces as well as disputes between provinces and the Federation. Such cases are also rare. Second, the Supreme Court has original jurisdiction under Article 184(3) to hear cases involving questions of public importance regarding the enforcement of fundamental rights. This jurisdiction can be exercised both on the application of an aggrieved party as well as by the Supreme Court on its own motion (that is: ‘suo motu’).

Cases under Article 184(3) are significant not because of the total number of cases but because they have, in the past, taken up a disproportionate amount of the court’s time (especially during the tenures of Chief Justice Iftikhar Muhammad Chaudhary and Chief Justice Saqib Nisar). Furthermore, these types of cases tend to mushroom and expand. For example, on one date of hearing in a case pertaining to Karachi, there were 118 applications listed for hearing arising out of 42 connected matters!

Appellate jurisdiction also falls into two heads. The first category is appeals of right, where the constitution itself provides that an appeal shall lie to the Supreme Court (such as where a high court has reversed an order of acquittal and sentenced an accused to death). The second category is where the Supreme Court grants ‘leave to appeal’, for example because it feels that there are questions of law which require examination. I do not have exact figures but my understanding is that the majority of all cases before the Supreme Court would fall within the second category.

To return to my original point, the vast majority of cases before the Supreme Court are cases which simply do not belong there and which should have been allowed to become final at the high court stage. Why then does the court persist in hearing such cases, particularly when the end result is an uncontrollable docket?

In terms of Article 184(3) cases, the reason why the court continues to be receptive to such cases is because (a) in some cases, the exercise of such jurisdiction is actually necessary (see, for example, the SC’s intervention in the National Assembly vote of no confidence); and (b) there is now a nexus between the media and the judiciary in which the media continuously unearths scandals for a continuously outraged judiciary, as a consequence of which both get to bask in the glow of public approbation. A less outraged Supreme Court means a court which spends less time on the front pages of the news. Some CJPs are more immune to this sort of flattery and hence waste less time in what is essentially, a performative type of justice. Others get addicted to the limelight.

In terms of the vast majority of routine cases unnecessarily taken up for hearing, the problem is exactly the opposite from that in the case of Article 184(3) cases. In Article 184(3) cases, the issue is the tendency of certain judges to act as if they have suddenly inherited the imperial tradition of ‘Adl-e-Jehangiri’. In terms of the routine cases, the problem is the inability of Supreme Court judges to understand that their role is different from their role in the high court and that they must now focus on dealing at length with important questions of law rather than continuing to deal with routine factual cases.

The further problem with the latter issue is that not every judge, with great respect, is cut out to handle issues at a Supreme Court level. This is not intended as a matter of disrespect. Not every first-class cricketer is cut out for test cricket, no matter how many years they have spent toiling in the trenches. The same is true for judges.

The point I am making is fairly simple: if judges are picked for their experience in handling routine matters (ie: on the basis of seniority) they will happily accept routine matters for hearing at the Supreme Court level as well. On the other hand, if Supreme Court judges are picked for their ability to produce judgments which definitively resolve complicated questions of law (ie: on merit), then the court too will focus on such issues. Hence appointing the right judges is key.

Let me close by making one final point: if tomorrow the Supreme Court tries to radically reduce the number of cases it hears, it will be opposed tooth and nail by the bar associations. This is because lawyers have become accustomed to a legal system in which high court judgments are routinely appealed. My advice, if accepted, will therefore certainly result in headaches for the court. At the same time, the current system needs to change. And only the Supreme Court is capable of leading that change.

This column appeared in The News on 3 September 2022

Why Civility Matters

About a week ago, Federal Information Minister Marriyum Aurangzeb was accosted and harassed in London by a group of PTI supporters while on her way to a coffee shop. She was accused of being a thief, of helping thieves, and of being shameless. Repeatedly and loudly.

To her great credit, Ms Aurangzeb responded – as she has done previously to similar provocations – with nothing more than a bemused smile and a raised eyebrow. Eventually, videos having been recorded for posterity, the crowd dispersed in search of fresh victims and Ms Aurangzeb was allowed to enjoy her diet coke in peace.

Criticism of the ‘gherao’ was immediate and sharp, perhaps because the videos called to mind not a band of fearless citizens speaking truth to power but rather a rabid pack of pitchfork-bearing medieval villagers in search of a witch to burn. The Insaafi faithful were, however, unrepentant. The standard response was to point to the arrest of Shireen Mazari (among other alleged outrages) as justifying what was done to Ms Aurangzeb. The less polite response was to say, and I paraphrase, “Who cares about civility? They are all thieves who have destroyed the country.”

Since I believe that civility is actually important, let me try to respond.

To begin with, the PTI cannot excuse the behaviour of its supporters with reference to the sins – alleged, real, or otherwise – of the PML-N. If something is wrong, then it is wrong. You cannot excuse unethical behaviour by saying “well, they did it too”.

Second, the world of Pakistani politics is bigger than the death-match between the PTI and the PML-N. The standards applicable to the PTI are the standards which govern the PTI’s relationship with the Pakistani public at large. Thus, whether or not the PML-N has also behaved reprehensibly is irrelevant. If the PTI wants to represent all of Pakistan, if indeed it wants to claim that it is the best option for Pakistan, then it has to act in a grown-up manner and not applaud supporters who act like a bunch of thugs.

Third, vigilante social justice mobs put us on a slippery slope to hell. If today, a random group of PTI activists can mete out their form of justice on a London street then tomorrow, a different group of activists will dispense justice in a harsher form. Salmaan Taseer was shot dead by one such self-righteous activist. And more recently, Ahsan Iqbal survived a murderous attack by a different activist.

This last point is particularly important in the context of expatriates because they live in a context removed from the physical consequences of their belief. In this regard, the PTI activists shouting “chor, chor” in a London coffee shop are much the same as BJP activists parading a bulldozer through the streets of Edison, NJ in the name of Hindu pride.

Fourth, civility isn’t just a minor virtue. In fact, if you define civility as including the courtesy to listen to opposing viewpoints, it becomes the foundational virtue underpinning the very concept of parliamentary democracy. As elaborated by Jurgen Habermas in his theory of communicative rationality, a meaningful conversation by definition includes the assumption on the part of the parties involved that the conversation can result in progress towards a shared truth.

The structural embodiment of this philosophy is parliament. By creating a physical (and legal) space in which anything can be said, the constitution embraces a vision in which a socially acceptable truth is to be determined through debate. And note, there are very few legal limits on what can be said in parliament. Instead, the only limits imposed by the speaker of parliament are those which preserve the integrity of the debate itself. In other words, parliamentarians can say whatever they want, subject only to rules of civility (or as alternately phrased, the obligation to avoid ‘unparliamentary language’).

The refusal to be civil is therefore intimately connected with the refusal to acknowledge any other option as reasonable. However, this “I alone can fix it attitude” (to quote Donald J Trump) is profoundly anti-democratic. Democracy combines faith in processes and debate with doubt in beliefs. Fascism offers the reverse: contempt for processes, and absolute faith in one set of beliefs.

At this point the Insaafis will again say that Nawaz Sharif and his cronies are a bunch of thieves. Why should they respect them? Why should they be civil to a bunch of thieves?

The answer, once again, is that they should respect the leaders of the PML-N if only because almost 13 million Pakistanis voted for the PML-N in the 2018 election. And PTI voters cannot choose to ignore those 13 million Pakistanis. To disrespect the PML-N is to disrespect the people who voted for the PML-N. And while PTI voters may believe that PML-N voters are misguided or foolish, it is the democratic right of every Pakistani to make foolish and misguided choices at the ballot box.

There is a final point to be noted here as well. Democratic politics in Pakistan plays out under the overhang of a hugely imbalanced civilian-military relationship, overshadowed by a history in which Pakistan has been directly ruled by the military for decades at a time and indirectly controlled for most of the rest of its existence. To argue that a civilian party should be ignored because it is controlled by kleptocrats is to accept that the wishes of millions of votes can be ignored because of the actions or identity of their leader. And history is witness to the fact that each and every one of our multiple military interventions has been justified on the basis that civilians are incompetent, untrustworthy, corrupt and that the “constitution is not a suicide pact”.

Let me spell this out. The Insaafi argument against the PML-N is the military’s argument against democracy: that X is incompetent; that Y is a thief; that democratic norms are irrelevant because we are right and you are wrong. The Insaafis don’t see this logic because they think their leader alone can ‘fix’ Pakistan. But they are being blind. All that they are doing is sawing off a branch on which they themselves are also perched. If they succeed, the end result here will not be a PTI victory but only the further weakening of democracy.

This column was published in The News on 3 October 2022

Fixing Judicial Appointments – Part II

In my earlier column, ‘Fixing judicial appointments’ (August 18), I had argued that the intractable debate between those advocating unrestrained discretion and those demanding ‘objective’ standards (such as seniority) was unnecessary. Instead, I had proposed that every member of the Judicial Commission be empowered to nominate candidates and that every JCP member be allowed to vote as they please.

Justice (Retd.) Faisal Arab has responded to this idea through a recent column. Justice Arab disagrees with the concept and makes the following arguments:

One, that the CJP only has 11 per cent of the voting power of the JCP. Two, that allowing other judicial members of the JCP to nominate judges will result in the development of groups within the JCP. Members of the JCP will then be inclined to prefer individuals nominated by their own group which would not be good for the “disciplined functioning” of the JCP.

Three, that in the US, only the president nominates judges. Similarly, in the UK the nomination also comes only from the chairperson of the Judicial Appointments Commission (JAC).

Four, that giving the power to nominate only to one person is in accordance with the principle of “unity of direction.”

And, finally, that if all members of the JCP can nominate candidates, you may wind up with judges who were not even nominated by the CJP.

My response to Justice Arab is as follows: one, yes, the CJP only has 11 per cent of the voting power in the JCP. But then why does he have 100 per cent of the nominating power?

Two, you already have groups within the JCP. In fact, not just the JCP but the entire Supreme Court is bitterly factionalized. That is why we have the unedifying spectacle of competing press releases. More pertinently, that is why none of the five candidates proposed by the CJP in the last meeting of the Judicial Commission were approved.

My problem here is not with the diversity of opinion. Instead, quite the opposite. My point here is that diversity of opinion is here to stay and should be embraced. Appointments to the Supreme Court are a matter of supreme concern not only to members of the judiciary but to everybody involved in the profession of law and even every citizen of Pakistan. We, as a nation, have moved beyond the point where such grave decisions can be discreetly made behind a facade of collegiality. Yes, I think that open debate of such questions is better. But even if you disagree with me, the legal community is now simply too fractured, too politicized and too polarized to now believe in the benevolent judgment of an all-wise ‘paterfamilias’. To misquote Faiz, “jo toot gaya so toot gaya, tum kyun aas lagaye baithe ho?”

Three, the US has an expressly and exclusively political system of appointments in which the president alone nominates judges to the Supreme Court but suitability and competence are independently assessed by the Senate. It is therefore not comparable to Pakistan in which the judiciary insists that: (a) judges should be appointed on merit; and (b) politicians are unqualified to opine on judicial merit. To elaborate, political leaders (like the US president) have the legitimacy to make ostensibly arbitrary decisions because they are elected and represent the majority consensus. Judges have no such electoral legitimacy and hence cannot justify arbitrary decisions.

The reference to the UK is equally inapt. To begin with, the chairperson of the JAC is not even a lawyer, but a politician. Furthermore, the judicial members of the Commission are a minority of the JAC and include a cross-selection of judges from across the UK, rather than only the five senior-most judges of the Supreme Court.

Most importantly, the selection process for judges in the UK is open and competitive. Vacancies are normally advertised, and written applications are invited. In the case of appointments to the UK Supreme Court, the JAC consults a wide range of senior politicians and judges across the UK. After interviewing the candidates, a report recommending one candidate is sent by the JAC to the lord chancellor (again a political appointee, approximately equal to our law minister) who is then again required to formally consult senior politicians and judges. Unless the lord chancellor rejects the final report on the basis of written reasons, the appointment goes ahead.

How is this very detailed, very public, and very open process comparable in any way to our system?

Four, there is no principle of ‘unity of direction’ in the judiciary. In fact, there is no such principle at all. To the extent I have ever heard of any such commandment, the closest analogue is General Musharraf’s ‘unity of command’. However, ‘unity of command’ does not apply to the judiciary. My understanding is that judges are selected not for their ability to obey orders but for their ability to use their independent minds.

Five, I concede that if all members of the JCP are given the power to nominate, we may wind up with judges whom the CJP has not nominated (and by extension, may not want to be appointed). But this is not a terrible outcome. Legal history is replete with judgments in which chief justices have found themselves part of a dissenting minority. Nobody thinks any less of those judgments just because the CJP was in a minority. This is because the institution of the Supreme Court is larger than the person of the CJP. Similarly, if the CJP’s reservations regarding a particular nominee are overruled by a majority of the JCP, the heavens will not fall.

All nine members of the JCP have devoted their life to the law, in one form or another. All of them need to be given the respect they deserve. To take the most obvious example, the current JCP includes three judges who are scheduled to become the chief justice of Pakistan. It makes little sense to say that, as of today, those three judges cannot be entrusted with the power to nominate candidates but that as and when they become CJP, they may exercise that power to the exclusion of everyone else.

Laws are a means to social ends. The purpose of inserting Article 175A in the constitution was to ensure the transparent appointment of judges on merit so as to enhance the legitimacy of the judiciary; in other words, to ensure not only that justice was done (in terms of judicial appointments), but that justice was seen to be done.

The legitimacy of the judicial appointment process is now under grave threat. One main reason for the threat is the stalemate caused by the infighting amongst the JCP members (and its spillover into the media). However, the solution here is not a return to the days when the CJP’s word was law. We are beyond the point where suppression of dissent was either feasible or desirable. Those days are over. To quote Faiz again: “sheeshon ka maseeha koi nahi, tum kyun aas lagaye baithe ho?”

This column appeared in The News on 27 August 2022

The hearts of men

Many years ago, there was an iconic radio show called ‘The Shadow’ in which the title character would be introduced with the tagline, “Who knows what evil lurks in the hearts of men? The Shadow knows!”

I was reminded of the Shadow by the recent proceedings of the Supreme Court regarding the constitutionality of the NAB law amendments in which the honourable chief justice of Pakistan posed the query as to whether parliament can make “self-serving legislation”.

The short answer to the above question is yes. Parliament can indeed make laws which personally benefit parliamentarians.

Take a simple example: what if parliament passes legislation reducing income tax rates tomorrow? Will the law be invalid because every single parliamentarian benefits from that tax reduction? Clearly not. Instead, the law can only be challenged on the grounds noted in the constitution. For example, if the impugned legislation grants tax relief only to parliamentarians, it can be challenged as discriminatory. But the mere fact that parliamentarians also benefit from a law is no basis for declaring it unconstitutional.

The broader jurisprudential principle here is that no malice can be attributed to parliament. Because once you start examining the motives behind an individual’s yes-no vote, you are operating on pure speculation (unless, of course, you are the Shadow and know what evil lurks in the hearts of men.)

In fact, the whole point of parliament is to take individual self-interested perspectives and, where a majority exists, enact that common consensus in the form of a statute. It is the majority principle that protects the people of Pakistan from “self-serving” legislation, not the moral character of its parliamentarians.

To take a different example, President Biden announced a $2.2 trillion ‘Build Back Better Act’ in January 2021. That proposal died because of opposition from two Democratic senators, namely Senators Manchin and Sinema. Subsequently, a less ambitious version of the same proposal managed to find favour with Senator Manchin after which all eyes turned to Senator Sinema of Arizona. It is a matter of record that Senator Sinema then insisted on several changes in the draft act which operated to the benefit of the very wealthy (including presumably backers of Senator Sinema). The rest of the Democrats then swallowed their objections to Senator Sinema’s proposals and the renamed ‘Inflation Reduction Act’ was triumphantly signed by President Biden on August 11, 2022.

Does the Inflation Reduction Act serve the narrow personal interests of Senators Manchin and Sinema? Absolutely yes. Does that make it unconstitutional? Absolutely not.

To summarize, legislation always serves the interests of one party or another. Yes, some legislation is so noble that nobody can object. But for the most part, “laws, like sausages, cease to inspire respect in proportion as we know how they are made.”

You may say this case is different. In this instance, the ‘krupt Noonies’ are changing the law so as to benefit themselves. Look at how many individual leaders of the PML-N will benefit from the amendments to the NAB Ordinance. Shame, shame, shame.

Before I respond to this allegation, it is worth taking a step back and situating the issue, both in the overall context of Pakistan’s troubled history since 1947 and more specifically, in the history of the NAB Ordinance itself.

In terms of the broader issue, the heavy-handed use of accountability laws has been a feature of Pakistani politics ever since the Public and Representative Office Disqualification Act, 1949 (PRODA) was enthusiastically used by Liaquat Ali Khan to prosecute troublesome politicians like Ayub Khuhro, Nawab Iftikhar Hussain Mamdot and Hussain Shaheed Suhrawardy.

In 1959, General Ayub updated PRODA and replaced it with the Elected Bodies Disqualification Order (EBDO). Like its predecessor statute, EBDO too was a blunt instrument used to hammer uncooperative politicians and civil servants into submission.

The next major legislative upgrade to the accountability regime came in 1996 when President Farooq Leghari introduced the Ehtesab (Accountability) Ordinance which was subsequently converted into the Ehtesab Act by the government of Mian Nawaz Sharif in 1997. Then, when General Musharraf took over through the October 12, 1999 coup, one of his first steps was to enact the NAB Ordinance.

There is no dispute that the NAB Ordinance is a draconian law. The fact that the chairman of NAB can, on his own and without the blessing of any judge or court, direct any individual to be arrested and held for 90 days is an abomination. More importantly, the basis for the Supreme Court’s approval of the NAB Ordinance in the 2001 Asfandyar Wali case was very much that hard times called for hard measures. Remember also this was the same Supreme Court which had earlier legitimized General Musharraf’s coup on the basis that governance had collapsed and that corruption had become endemic.

My point here is that the bogey of civilian corruption has always been a useful stick for the establishment to belabour elected representatives. And the NAB law is just one more manifestation of the same impulse. Imran Khan himself now concedes that NAB cases were manipulated by these powers that befor political advantage during his tenure as prime minister.

In this 20-plus year saga of the NAB Ordinance, one would have expected the judiciary to have gradually softened the rigors of a horrific law, at least after the departure of General Musharraf. However, the opposite has happened. Let me give two examples.

The first example pertains to the scope of the NAB Ordinance. Section 9 of the NAB Ordinance provides that a “holder of public office, or any other person” commits corruption if he, for example, takes money to do any official act. Under the rule of ejusdem generis, general language which follows a list of particular instances is to be read only as to the types of things identified by the specific words. Hence, the phrase “any other person” in the NAB Ordinance should have been read as extending the scope of the law only to other public representatives. Instead, in the 2013 case of Abdul Aziz Memon, the Supreme Court read “any other person” literally as meaning “any other person” including private individuals with no connection to the government.

The second example is even more perplexing. As originally promulgated in November 1999, the NAB Ordinance provided that no court could grant bail. Under existing precedent, however, the powers of the superior courts to grant bail could only be taken away through express language. Sure enough, some clever lawyer explained this fact to the powers that be and the relevant language was amended to say, “no court, including the High Courts” could grant bail.

The judicial inability to grant bail was a big deal because it meant that people picked up by NAB would stay in jail not just for the already unconscionable 90 days stipulated in the NAB Ordinance but for years at a time.

In 2001, the words “including the High Courts” were removed. The consequence of this change should have been that the high courts were now free to grant bail under the normal provisions of the Criminal Procedure Code. But instead, the Supreme Court held that the removal of the express words “including the High Courts” made no difference. Yes, there remained the outside option of getting bail through a writ petition. But that bar was high to begin with and then raised higher by the courts. In the 2019 case of Tallat Ishaq, the Supreme Court led by Justice Khosa held that the mere fact that somebody had languished in jail without trial for several years was not a good reason for releasing them on bail. Instead, the delay had to be “shocking, unconscionable or inordinate and not otherwise.” And even then, if “some significant or noticeable part of the delay” was attributable to the accused, bail was not to be granted.

The odd thing is that all this time while the Supreme Court was busy construing the NAB Ordinance in the harshest possible way, it kept on insisting that it had no option but to do so because it was bound by the letter of the law. By one count, there are numerous 23 separate cases in which various benches of the high courts and the Supreme Court have pointed out flaws in the NAB Ordinance or even gone further to suggest that they be removed by parliament.

Which brings us back to where we started from. Parliament has now actually acted on all that judicial encouragement and amended the NAB Ordinance. But the court is wondering whether parliament can enact “self-serving” laws.

The actual text of the new law amending the NAB ordinance was mostly prepared by the PTI during its tenure. Why are these amendments not being hailed as a model of bipartisanship then? What will it take to fix a law which every single major party now agrees has been consistently abused for extraneous reasons?

This column appeared in The News on 24 August 2022

Fxing Judicial Appointments

The last meeting of the Judicial Commission of Pakistan on July 28, 2022 ended badly. None of the five nominees proposed by the chief justice of Pakistan for appointment to the Supreme Court was confirmed.

Matters got worse when a post-meeting debate started over whether the five nominees had been rejected or whether their consideration had been deferred. The CJP tried to resolve this dispute by releasing the audio recording of the JCP meeting. That step only attracted further criticism (in part because the recording revealed that some members of the JCP had grave doubts regarding the integrity of certain nominees). All in all, an unfortunate and depressing spectacle.

What then is the way forward? Should the CJP give up his position that seniority is not the appropriate standard? Or should the ‘rebels’ temporarily relent for the sake of the system while a consensus formula is evolved?

In my view, both arguments are flawed because it is not necessary for the JCP to have a ‘formula’ for appointments. Instead, I propose to let every member of the JCP vote as they will. Let those who believe in seniority vote on the basis of seniority. Let those who believe in merit trumping seniority argue the merits of their chosen candidate. Let a thousand formulas bloom.

The actual problem with the current JCP setup is not the formula used to decide who becomes a Supreme Court judge (or the lack of one). Instead, the problem with the current setup is that only nominees proposed by the CJP get to be considered. As a consequence, if the CJP does not approve of any one candidate, that individual has no chance of being appointed. It is this formula (or more accurately, rule) which needs to change.

Defenders of the status quo argue that this system has worked for the past twelve years and that an alternate system which allows all members of the JCP to submit nominations would be unmanageable. Both points are invalid.

Chief Justice Umar Ata Bandial is a good man and a good judge. I have known him for decades and I have no doubts as to his competence or integrity. At the same time, it is time to retire the sentiment that the chief justice of Pakistan is the ‘pater familias’ of the judiciary. The chief justice of Pakistan will always be the first among equals. But there is no need to burden him with exclusive responsibility for certain decisions, particularly when there are better (and more democratic) options available. More importantly, this particular exclusive power has now become controversial to the extent that it affects the legitimacy of the entire judiciary.

So, how would an alternate system work?

Before I elaborate, let me first note a preliminary point. The seats on the Supreme Court have been normally understood as loosely corresponding to geographical quotas. Thus, when a judge from Balochistan retires, the assumption is that their seat will be filled by another judge from Balochistan. This convention needs to be updated to include judges from Islamabad (particularly given the inexcusable refusal to consider Chief Justice Athar Minallah). However, subject to that amendment, it provides a good working basis for nominations.

Here’s the proposal: if each of the JCP members has the right to nominate one person for each vacancy, there will be a maximum of nine candidates (though most likely less). Now ask all members of the JCP to vote yea or nay on each of the candidates, starting with the candidate who has the most nominations. The first candidate to get a majority of the JCP goes through to the next stage of the appointment process (review by the Parliamentary Committee). If no candidate gets a majority in the first round of votes, reduce the pool to those with the maximum number of votes and have a runoff. Now repeat the process for all available vacancies.

The benefit of this approach is that it avoids the insoluble question of what makes a good judge. As already argued by me in an earlier column, there is no formula which allows one to predict who deserves to be a judge. Sometimes great lawyers make bad judges. Sometimes judges bloom when they reach the Supreme Court. The one thing I can say with certainty is that seniority is a terrible basis to determine who gets elevated to the Supreme Court. Yes, seniority is a somewhat ‘objective’ standard. But it makes no more sense to appoint Supreme Court judges on the basis of their seniority than it does to appoint them on the basis of their height or weight (which are also objective but irrelevant standards).

By comparison, it needs to be recalled that six of the nine members of the JCP are either serving or former Supreme Court judges. The remaining three constitute the law minister, the attorney general and a senior advocate representing the Pakistan Bar Council. They are all individuals chosen for their integrity and fidelity to the law. If JCP members can be entrusted with the responsibility of (effectively) appointing judges, it makes no sense to say that they cannot be trusted with the power to nominate candidates.

In the words of Attorney General Ashtar Ausaf Ali, each of the JCP members is there as a fiduciary holding powers granted to them by the constitution as a “sacred trust”. Each of the members brings years of experience in the law to the table. Stop trying to straitjacket their decisions. Just let them vote.

The main difference between my proposed solution and the current JCP setup is that the CJP will no longer have effective veto power. That is no loss. Yes, the CJP is wise and venerable. But so too are the other members of the JCP.

The idea that there is some mystical formula which will result in the infallible selection of worthy Supreme Court judges is a fallacy. It is time to retire the myth and put our faith where the constitution places it: in the combined wisdom of all the members of the Judicial Commission of Pakistan.

This column appeared in The News on 18 August 2022

Destroying Democracy from Within

Marx said that history repeated itself, the first time as tragedy, the second time as farce. But what about the third time? Or the fourth? Or the twentieth? Do the tragic and farcical elements alternate or do they commingle into ever darkening but co-equal shades of pathos and stupidity?

Given the events of this past Sunday, my bet is on the latter. But let us first examine the facts.

On 17 August 2018, Imran Khan was elected as the Prime Minister of Pakistan by 176 members of the National Assembly, of whom 7 members were from the Mohajir Qaumi Party (MQM) and 5 were from the Balochistan Awami Party (BAP).

On 8 March 2022, the Opposition filed a motion for a vote of no confidence signed by the requisite number of MNAs.

On 27 March 2022, four members of the BAP announced that they would be voting against PM Imran Khan.

On 29 March 2022, the MQM announced that it would no longer be supporting PM Imran Khan but would instead be supporting the vote of no confidence. The announcement was significant because it rendered the debate in relation to Article 63A as to whether the votes of defecting PTI members could be counted in relation to a vote of no confidence. Instead, as of the date of the MQM’s announcement, Prime Minister Imran Khan clearly no longer enjoyed the confidence of a majority of Parliament.

On 3 April 2022, the motion for a vote of no confidence was due to be taken up by the National Assembly. Prior to the motion being voted upon, the recently nominated Federal Minister for Law rose on a point of order and argued that the motion was illegal because it was being conducted at the behest of a foreign power. Immediately thereafter, the Deputy Speaker presiding over the proceedings, Mr. Qasim Suri, held that the motion was indeed illegal. And as the Opposition milled about in angry confusion, the nation was informed that Prime Minister Imran Khan had advised the President to dissolve the National Assembly and that the President had been pleased to approve the summary for such dissolution.

Like all controversies of great import, this too has been shoveled onto the Supreme Court’s doorstep. Chief Justice Bandial has taken suo moto notice and is holding hearings on a day-to-day basis.

In the meantime, there are two questions to consider. Is the Deputy Speaker’s ruling justifiable? And if not, does the Supreme Court have the option to intervene?

The Deputy Speaker’s detailed ruling contends as follows: (1) that a letter sent by a Pakistani Ambassador letter as well as the information provided in a briefing to the Parliamentary Committee on National Security showed that “there was nexus between no confidence motion against Prime Minister and the foreign intervention”; and (2), these facts required a “thorough investigation by the appropriate forum” because otherwise the danger was that Pakistan’s sovereignty would be irretrievably compromised.

This argument is not sustainable for multiple reasons, both of fact and of law.

In terms of facts, the only evidence mentioned by the learned Deputy Speaker in his ruling for this grave allegation is a letter dated 7 March 2022 supposedly sent by Pakistan’s Ambassador to the United States regarding his discussion with Donald Lu, the US Assistant Under-Secretary of State for South & Central Asia. I use the word “supposedly” since the letter has yet to be disclosed publicly and, as of now, there are allegations that its contents have been misrepresented by the PTI government.

So far as the contents of the letter have been publicly described, the most that has been claimed is that the Pakistani Ambassador was told that if Imran Khan continued as PM, there would be horrific consequences for Pakistan. There is no allegation in the letter that Mr. Lu confessed to being responsible for the vote of no confidence. The learned Deputy Speaker’s conclusion that the motion for a vote of no confidence was at the behest of a foreign power is therefore based on precisely zero evidence. Even if we assume that the United States does want Imran Khan removed as PM, and that this desire is shared by the combined Opposition, correlation is not causation.

The Deputy Speaker’s ruling is far more troubling as a matter of law.

A member of Parliament who acts on behest of a foreign power would be guilty of treason or, more prosaically, of acting “in a manner prejudicial to the sovereignty, integrity or security of Pakistan.” Under Article 63A, a person who acts in such manner is liable to be disqualified but, and here’s the kicker, if and only if “he has been convicted by a court of competent jurisdiction.”

By preventing the members of the Opposition from voting, the Deputy Speaker acted illegally because there is – till date – no judgment of a competent court stating that every member of the Opposition was guilty of treason.

The same principle operates at the level of political parties. A political party which operates in a manner prejudicial to the integrity of Pakistan can be declared illegal by the Federal Government. However, under Article 17 of the Constitution, the Federal Government must submit a reference to this effect directly to the Supreme Court. No such reference has been filed till date. The Deputy Speaker’s ruling is therefore also illegal because it usurps the role of the Federal Government and the Supreme Court of Pakistan.

There is good reason why the Constitution reserves such judgments for the courts and does not leave them to partisan politicians. If today, the entire Opposition can be disenfranchised on the basis of one man’s suspicions of treason, then tomorrow the entire Opposition can be disenfranchised on the basis of different suspicions. No parliamentary system can work in such manner.

The argument that Article 69 prevents the Supreme Court from overruling the Deputy Speaker is equally feeble. Article 69 is expressly limited to “irregularities of procedure.” Disenfranchising the entire Opposition on the basis of unverified allegations is not an “irregularity of procedure.” It is a travesty. In any event, there are multiple judgments stating that courts may intervene on substantive grounds.

Pakistan has a tortured history of slowly moving towards democracy. At every step of the way, we have heard pundits intone that our people are too stupid to be entrusted with real power, that democracy does not suit the genius of our people and that left to themselves, the bloody civilians will invariably make a hash of government. As always, the people are blameless. It is their leaders – and in this case, specifically Imran Khan – who have proven themselves unfit for democracy.

Our is a parliamentary system, not a presidential system. The foundational unit of our democracy is not the voter but each of their elected representatives. It is possible that an MNA may commit treason. But to casually impute treason to almost 200 parliamentarians on the basis of an unverified letter containing impressions of a month-old conversation is to hold all parliamentarians in contempt. I understand that Mr. Suri took this step to please the Prime Minister. But Mr. Khan is not above the system. To the extent he enjoys our respect as the Prime Minister, he holds that office by virtue of the votes of the same parliamentarians he now calls traitors.

The author is a lawyer of the Supreme Court. The views expressed in this column do not represent the views of his firm.

This column was published by The News on 6 April 2022