The judgment that never came | Shahzad Chaudhry


Over the course of the Panama leaks trial there are a few things that ordinary mortals have learnt: A court is a “court of law….not a court of justice” – Oliver Holmes Jr. Why do we then in popular sense seek justice from the courts? Why should the ‘Scales of Justice’ symbolise courts? The only people who could convert the search for justice into legal relevance are the lawyers. Is it then them who inhibit justice under the subterfuge of due legal process as the smarter twist the law in favour of their clients? Clearly, to the average Pakistani society justice is dearer while law remains alien.

And, “behind every great fortune there is a (perfect) crime” – Honore’ de Balzac. Probably true on the grand scale of exceptional fortune in the shortest time than what would otherwise span generations of sustained hard work; perhaps exceptionally true also for a minor and short-lived miracle. Finally, a 4-3 split constitutes a judicial murder but a 3-2 split is a graceful redemption, is in itself a contradiction.

I tend to agree with the latter. On what grounds did the two dissenting judges base their conviction of the PM on? Were they reading from a different law book? Or were they driven by a force of conviction outside of the law book almost bordering on common sense, nay justice? Or was it to justify the admission of a popular complaint raised to a crescendo? Especially when no one else, those professionally dedicated to accountability and investigating financial crimes, would broach the issue and the Supreme Court had to admit petitions under 184(3) – public interest litigation. The chairman of NAB having stated so in plain words to the Supreme Court.

The difficulty with the Panama decision is the inability to discern what public interest may have been served. If indeed the PM was alleged to have committed a crime it was but natural for the trial courts to take on a criminal proceeding. They did not and none went before the trial courts; which in itself is a sad indictment of sorts of the judicial environment we live in. The public pressure exerted its own dynamics which forced the SC to admit instead the petition before it in public interest.

Constrained by the limitations of law, contrary to the demands of justice – one a tradition, the other an incumbency per constitutional statutes – and unable to see evidence either way, there were only two avenues open to it; dismiss the petition or indict the PM. In an exaggerated exercise of its powers under 184(3) it could have even convicted the PM. It chose to steer midway negotiating what to the court seemed the path of least resistance. How 184(3) may have been amplified for precedence was exemplified by the two judges opting to extend the domain to the point of a clear declaration while the other three chose to wait for more evidentiary support transferring the burden to a JIT in a conservative resort. An excess under 184(3) may have been saved, for now, but justice surely has been kept waiting.

It did not dismiss it either. Regretfully, it sent it instead for investigation to exactly those who had in the first place either been distrusted or were simply unwilling to get involved. With this approach either the PM will get a clean chit or will, with some magic, bring forth to the SC additional evidence unearthed by the JIT under a Grade 20 Officer of the FIA, two of whom have already chosen long medical leaves over the onerous task of investigating the PM. So much for the JIT. There are other considerations as well to halt the JIT in its tracks. An appeal against the fidelity of the investigations in an environment of excessive political coercion can be a useful ploy. Legal and political games thus go hand in hand.

Public interest would have been better served if the SC had instead detailed the need for improvement in the law and its application through further legislation. What was possibly done in 1992-93 should not become a matter of disruption almost 25 years later, whatever the canons of justice and law may suggest. Where have such principles held in our political and social life before? ‘Sadiq’ and ‘Ameen’ is too high a bar for a society that has reared itself on making the extra buck, or stealing when an opportunity presents itself. And where may it be more than where both power and money, and a lot of guile, centralise under one man or woman. Law and tradition are both lax for such men of power.

Implicitly, though, if the top man is punished for misconduct and financial misappropriation it just might deter others to take that route. And again perhaps not, the lure of free money far too much to banish for moral penitence. In a system made by the elite for the elite, even legislation must be forced out of the institutions meant to uphold the rights of the common man in whose name they lord. The court through its order, even if constrained to declare conservatively, could have been far more imaginative in seeking an honest public good. In the event it only focused on dealing with the man in a position of power and got so consumed by the altruism of it that a larger good went abegging.

The split judgment opened other cleavages. While it may have been a court of law hearing the petition, Justice Asif Khosa uniquely invoked Article 187 which encumbers justice as an end of all jurisprudence. Something which he exemplified by quoting the pedestrians of Dera Ghazi Khan, who without the slightest initiation to the intricacies of law could detail justice in this case.

So much for ‘what could be’. What of ‘what will be’? The JIT, the Panama Bench’s escape chute from giving a difficult decision against a man of power and influence, may too end up in the wilderness of the Gulf deserts or the remoteness of Panama’s secret caches. The Sharifs may have little to show for evidence of legitimate wealth in buying the Mayfair properties. Representatives of the ISI and the MI may be of little help, this not being their area of specialised attention. It is then that an empty JIT may report back with nothing more. What then? Will the decision then have been made for the three judges waiting for some more to enable them to reach the same decision as the other two? What does the law dictate here? A legality unproven may in itself convert to a crime proven? Only time can tell.

We are once again in an uncertain space. The politics of the land will use the moment to suit its own needs while those given to analyse will have their say. In all this, the institutions will get their dose of daily knocking while the politicians will spin their tales. The government in the meanwhile will only be held aloft with the flimsiest thread, perpetually fearful of falling under its own weight. Such is the bankruptcy of thought; paralysis through overwhelming obfuscation. Against such insurmountable odds democracy offers a reset – snap elections. But then our politics is hardly about democracy.