The current standoff between the prime minister and the Supreme Court is in fact a pointer to a basic shortcoming in our constitution and in our constitutional practices. It can perhaps best and permanently be resolved through a constitutional amendment, which would make much sense and would at the same time strengthen our judiciary.
The Supreme Court maintains that since they had ordered the government — rightly or wrongly — to write to the Swiss authorities to proceed against Asif Ali Zardari in the matter of his corruption cases and the resultant foreign bank balances in Switzerland, and the government did not do so, therefore the prime minister is in contempt of the Supreme Court. The prime minister contends that a constitutional clause grants the president of the country immunity against all sorts of prosecution, therefore the government cannot, in violation of our own constitution, write to a foreign government to proceed against our president; and that if this was feasible the Supreme Court would easily order prosecution against him inside the country.
So far we have not heard the Supreme Court rule that the president does not possess any immunity from prosecution. If that had been the case, parliament would have overturned such a ruling through legislation immediately. All that the Supreme Court is doing is that it is insisting that there has been a contempt of the court’s order. They refuse to address the question of how the hurdle of the constitutional immunity can be overcome so as to enable obedience to the order. Thus there is an impasse. Apparently, there is no way forward toward resolution of the matter. All that is being made clear is that the Supreme Court is independent.
Some observers believe that what is going on is a make-believe wrestling match (noora khushti) whose purpose is to stage a mela (show), as a counter-poise to some very real and painful national problems. And it is also to help the government complete its term, as well as appear to be a victim at least on one count even if it is believed to be corrupt and anti-national on fifty other counts.
Another group of observers is now taking a lead from a statement of the Lahore High Court Chief Justice and they would like to suggest that the current on and off status is, in fact, based upon a questionable judicial formalism. It is being suggested that the real malaise was recently highlighted when the Chief Justice of the Lahore High Court commented to the effect that courts have no policies, they only go by the letter of the law. That appears to be a very laudable attitude on the part of the judges, and probably welcome.
Two things have to be noted in this regard. First, all laws are the expression of some policy or the other that had been preferred and favoured by parliament. As such, being somewhat aware of the policy that created a particular law is always very helpful in correctly interpreting that law. Second, at the very highest echelons of the judicial hierarchy, it is absolutely essential that not only the judge be very just and honest, he must also have a full understanding of the policies that underlie a legal system and each and every law within it.
This is the reason why in Britain the Supreme Court is ‘not’ supreme, but the House of Lords, which is a part of parliament in Britain, is the real supreme arbiter of justice and the interpreter of British laws. Similarly, in the US, while the Senate has not itself taken over as the supra-Supreme Court of the land, what it has done is that it has taken full control over the appointment of judges to the Supreme Court. This appointment is done very openly, on the basis of the candidate’s politics or rather his commitment to one type of policies or another.
Indeed, far from being a bad word, it is openly stated that the superior judiciary cannot be superior, and be capable of accurately interpreting laws and indeed the constitution itself, unless they are well versed in and in agreement with the policies that have given birth to these legislations and that continue to inform them. Anything else would amount to misinterpretation of laws and hence change the intention of the legislature. And upholding the true intention of the legislature is absolutely vital because anything else would mean defeating the public will and stabbing the democratic order in the back. Legislators are supposed to vote inside parliament as their constituents had desired them to vote at the time of their public election.
But there is also another very pertinent reason why the courts must interpret laws in accordance with the policies which gave them birth, as these were expressed by parliamentarians through their speeches and their votes, all of which was done at the behest of and with the backing of the popular vote. The fundamental, and indeed impeccable rule or dictum is saluspopuli est suprema lex.
This dictum cannot be violated except at the heavy cost of the breakdown of the entire state system, or at least the redundancy of the errant part of the state’s machinery or apparatus. This is no mean matter. Such things can not only destroy single institutions, they can go further and cause deep destruction more comprehensively. Imagine, for example, a Supreme Court in a country passing orders which no one, not even the people are willing to back up, then what will happen? The court’s orders are reduced to rubbish by popular opinion. But more than that, the entire judicial hierarchy becomes compromised and hence dysfunctional. That in itself could blow a society toward a bloody revolution.
Perhaps the best answer to this entire situation is that the government should bring in a constitutional amendment providing for the setting up of a final court of the Senate. That would be the final court of appeal, and would be sensitive to the policies and directions in keeping with the popular will, so that judicial decisions will always have the requisite sanction behind them, and the judiciary therefore will never have to face a crisis of redundancy.
Our constitutional practice in the matter of appointment of judges of the superior courts also needs to be altered to read that the appointment has to be made by the president who shall be free to choose a name out of a suggested panel of five names. This is not a new practice and nor should there be any harm even in making it a part of our written constitution since we tend to play around with unwritten practices too much.
The writer is a freelance journalist