Fanatically, the nation clung to hope for judges to speak truth to power. Their wait without an end to consign corrupt rulers to the underworld had finally arrived. But did it? No. Ask the opposite camp and they’ll praise the three judges who didn’t send Nawaz Sharif home. “Let me add that no person can be convicted of any crime without a trial,” declares Javaid Shami, a happy camper. “The Supreme Court is not a trial court. It cannot convict anyone; only uphold or reject an appeal by an aggrieved party,” reasons Shami, son of Shaheed Brigadier Ahsan Rasheed Shami. Why then did the apex court entertain the Panama leaks case? “It should not have accepted it,” he asserts. True, but the Supreme Court spent many judicious months examining the legality of the case before taking it up last October. ‘Guilty’, was the judgment most wanted to hear but that didn’t happen, and “rightly so,” he says.
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“I disagree with the minority judgment by the two senior-most judges,” he claims. “Had the wordings in this case been vague or confusing, then an interpretation of the law was warranted. Since there was no ambiguity in the wordings of the various articles of the Constitution quoted in the judgment, the interpretation by the majority judgment was veridical based on legalities and not personal biases.”
On the opposing side is a 73-year-old surgeon, Dr Rifat Hussain. A Pashtun whose hometown is Peshawar, Hussain came to America 50 years ago. Yet, he never severed himself from Pakistan. On a recent visit to K-P, the doctor’s prognosis of the case held a promise for the 200 million Pakistanis. Now, back in America, he emailed me. “I’ve gone through the entire 549-page judgment. Had the decision to cut loose the immunity enjoyed by rulers gone on a rampage to ruin this nation since its creation, we would have hailed the judgment,” he wrote. “But the majority decision dogged this responsibility.”
Dr Hussain hints at a disconnect between the “evidence and the conclusions drawn” by the majority judges. Undoubtedly, our respect for the apex court and its judges is high but still “we want our judiciary not to be mere technicians or clerks but thinkers and philosophers, able to comprehend the bigger scheme of things and if needed rise to the occasion.” It’s fashionable to claim that the court cannot rule according to the wishes of the people; it must rule according to the law, he says, but ask the man on the street and he’ll tell you how disappointed he feels with the judgment.
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Raja Omer Shabbir in his recent column draws out the differences in the majority and minority judgments of the five judges. Justice Asif Saeed Khosa and Justice Gulzar Ahmad recommended disqualifying the prime minister as per Article 62(1)(f) of the Constitution of Pakistan. In his justification for disqualification, Justice Khosa acknowledged his “departure from traditional adjudication,” because “new avenues of hiding ill-gotten have emerged,” warranting “different approaches to concluding as to whether the allegations of corruption levelled against an accused are true or not have to be adopted.” Justice Ejaz Afzal Khan’s argument is just the opposite arguing a prime minister cannot be disqualified on the basis of “mere suspicion.” Everyone deserves the due process of law and the right to trial and appeal. Therefore, Shabbir concludes that “an exception cannot be made for just one particular case. While Justice Khosa and Justice Gulzar took the “aid of sufficient suspicious circumstances, in spirit of the law and constitution and not its letter in giving their judgment,” the majority judgment is the “perfect antithesis to the reasoning and judicial wisdom resorted by the two judges.”
Published in The Express Tribune, April 30th, 2017.