Daily Times

Oliver Wendell Holmes, a remarkable legal scholar and US Supreme Court justice, expounded in his treatise The Common Law (1881) the theory of legal development as a story in the process of being written by judges based on practical realities and not a set of rules. Law is not, he stated, a ‘book of mathematics’. ‘The life of the law has not been logic,’ wrote Holmes famously, ‘it has been experience’. Based on this view, Holmes committed a number of follies that have tarnished his legacy despite his genius and dazzling writing style. In a series of judgments, Holmes delivered memorable judicial travesties leading to entrenchment of racial hierarchies (Giles v Harris), curtailment of free speech (Schenk v US and Debs v US), and upholding of forced sterilisations of person with mental disabilities (Buck v Bells). For substituting his own policies derived from experience for the text of the Constitution, subsequent generations judged Holmes, a legal giant, to be often less wise and correct than the Constitution.

In the story of legal developments in Pakistan, the Panama Papers majority judgment, delivered on 28 July, would be remembered as an anti-democratic judicial verdict. After weeks of oral arguments and a two-month investigation, a popularly-elected prime minister was sent packing for not being honest and ameen because he did not declare his ‘assets’ comprising of unwithdrawn salary of 10,000 dirhams from a company in UAE. From this reasoning, one suspects that the Supreme Court was looking for an excuse, even a slight one, which they eventually found, to cut short the tenure of yet another prime minister. Those who celebrate this judgment essentially celebrate the triumphant achievement of an end — the ouster of Nawaz Sharif — at the cost of proper means and procedures.

The summary manner in which the Supreme Court dealt a death-blow on the office of prime minister and probably the entire political class of this country is highly problematic. The core question — whether unwithdrawn salary constituted ‘asset’ which required disclosure under the Representation of the People Act, 1976 (ROPA) — has been addressed with remarkable haste and hurry. Relying on the lone authority of dictionaries, albeit being authoritative ones, the Court did not find it relevant to engage in any finer legal analysis of legislative purpose and intent, judicial precedent, common or technical usage, or consequences of judicial determination to interpret the term ‘assets’ under the ROPA. A dictionary was all that the Court needed to reach its conclusion that an elected prime minister be disqualified from holding a seat in the Parliament.

Panama Papers judgment will be remembered by many as one of those episodes of judicial activism whereby the Supreme Court preferred a Spartan view towards process in favour of achieving particular ends

What is even more remarkable is the silence of Panama Papers judgment on whether the Supreme Court invited any submissions from the parties on the core question pertaining to definition of ‘assets’ under ROPA. From this omission, as well from the newspaper reports, it is safe to assume that the Court did not undertake the endeavour of directing the parties’ attention to this consequential issue, which cropped up after the JIT report, and no opportunity to present arguments on this issue was offered. And, if this is indeed true, one wonders whether the parties in this case and, most importantly the former prime minister, not entitled under the principles of fairness, due process, and rules of natural justice to address the Court on this issue through his counsel? Seemingly, the Court only asked the counsel of prime minister about the prime minister’s entitlement to draw salary from Capital FZE. The response on this was in the affirmative. But no question was apparently posed regarding the equation of unwithdrawn salary with the term ‘assets’ under the ROPA.

The Court raised a new issue in the judgment and proceeded to answer it on its own without offering the parties an opportunity to address the argument. Why did the Supreme Court follow such an approach? It is not clear. It may be open for a superior court to raise an issue on its own accord (suasponte) and respond without the benefit of adversarial argument. Professor Robert Martineau, writing in a slightly different context, labelled this practice of courts as an exception falling under the ‘gorilla rule’ (ie, the 800-pound gorilla may sit wherever it wants). As no reasons are given, the Panama Papers judgement does not offer any explanation about why this rule of the jungle has been followed. Lest it be forgotten, the infamous State v Dosso case also suffered from a similar affliction, in a more grave and serious form, where Mr Yahya Bakhtiar could not have the opportunity to address the Court on arguments raised by it. Fairness and propriety demanded that the parties should have been offered a chance to argue on all crucial points, even if it was not mandatory procedure. To quote Justice Breyer of the US Supreme Court, ‘somewhat longer’ (and often fairer) way ‘round is the shortest way home.’

Panama Papers judgment will be remembered by many as one of those episodes of judicial activism where the Supreme Court preferred a Spartan view towards process in favour of achieving particular ends. The Court has sent Nawaz Sharif away for good, unless the review overturns the judgement, which is unlikely. But, the way in which Sharif has been ousted and the principles which formed the basis of his ouster do not reflect positively on the Court. The Court will retain its focus as a centre of political intrigue. Eager politicians will boast about receiving phone calls from judges. Adventurist judges may call on politicians to settle their scores in courts rather than through democratic process. And the prime minister’s office may remain forever crippled and compromised. Democracy will inevitably suffer, not the least because of undermining of judicial propriety. We are not back in the 90’s, and it will be wrong to state that we are as the Parliament is not dissolved. But are we that far away?

The writer is a lawyer based in Lahore

Published in Daily Times, August 2^nd , 2017.