Saad Rasool |
Just as our national gaze is focused on NAB references against the Sharif family, the review petition in Panama case, and Benazir Bhutto’s murder appeal… a far more pervasive and consequential struggle for the ‘heart and soul’ of our judicial system is being waged in the ongoing Sher Zaman contempt proceedings. And for now, it seems as though the honorable Supreme Court of Pakistan has caved in the face of what is colloquially referred to as ‘wukulagardi’.
For those who are unfamiliar, a brief overview of the facts is necessary.
In case the honorable Supreme Court does not support this cause, or lends leniency to Sher Zaman and his supporters, the final hope of countering this menace will perish
As has now been widely reported, an ugly episode transpired between one Mr. Sher Zaman, President of Multan Bar Association and honorable Mr. Justice Qasim Khan, as a result of which Mr. Sher Zaman cursed the honorable Judge, vandalized his courtroom, and gathered supporters to chant (despicable) slogans against superior judiciary.
When the matter came to the attention of the honorable Chief Justice of Lahore High Court, Syed Mansoor Ali Shah, he constituted a five-member bench of the honorable LHC, which issue a contempt notice to Mr. Sher Zaman, vide order dated 26th July 2017, directing him to appear before the said Court on 31st July. The relevant provisions of law (as well as judicial precedents) require that the alleged contemnor must appear ‘in person’ before the Court, in order to answer/respond to the show cause notice. Mr. Sher Zaman, however, refused to accept the notice and did not tender appearance on the 31st of July.
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Over the next three dates of hearing (31st July, 2nd August, and 11th August), Sher Zaman still did not appear before the honorable LHC. Regardless, the LHC continued to exercise unprecedented restraint in the matter (not issuing warrants of arrest), primarily based on assurances given by President of LHCBA, Vice President of LHCBA, members of Pakistan Bar Council, Punjab Bar Council, and several senior lawyers, including, Mr. Ahsan Bhoon, Ms. Asma Jehangir, Mr. Farhad Shah and Mr. Ghulam Sarwar Nihung.
This is a watershed moment in our judicial history. The genie of wukulagardi, which came out of its proverbial bottle at the start of the Lawyers Movement, has now become uncontrollable
Finally, on 21st August (fifth hearing), when the case was next heard, Mr. Sher Zaman once again failed to appear before the Court. Also, no one tendered appearance on behalf of Pakistan Bar Council, Punjab Bar Council, Lahore High Court Bar Association, and Multan High Court Bar Association. Consequently, in light of Mr. Sher Zaman’s “consistent defiance” to appear before the Court, the honorable LHC was left with no option but to issue non-bailable warrants and to “suspend his license” to practice law.
Sher Zaman escaped through the porous clutches of our law enforcement and has not been arrested. Simultaneously, despite the honorable Court’s exemplary restraint in the instant case, and a blatant defiance of judicial orders by Mr. Sher Zaman, for some (absolutely ridiculous) reason, supporters of Mr. Sher Zaman decided to ransack the Lahore High Court building, break down its gates, and pelt stones at Court officials and law enforcement agency personnel. And a few days later, the Bar Council restored his license to practice.
Read more: A moral judgment?
Just as importantly, if Sher Zaman is allowed to escape the grasps of LHC, even after all the sloganeering and vandalism, why did we convict others (in the past) for contempt of court?
The issue did not end there. As Sher Zaman and his supporters upped the ante in their sloganeering and campaign against LHC and its supporters, they were joined by Mr. Nawaz Sharif and company. An alleged lawyers’ convention (which included political actors masquerading as ‘lawyers’) was called, in which members of the higher judiciary were called names and ridiculed. Suddenly, Sher Zaman was not just a contemnor of law… he was a symbol. A manifestation of all that is wrong with our Bar culture, and with the system of justice in this country. He suddenly embodied the very problem that judicial systems are designed to counter: anarchy.
Amidst this chaos, Sher Zaman decided to appeal LHC’s orders before the Honorable Supreme Court of Pakistan. There is nothing wrong with that – he had a right to do so. In fact, the move was welcomed by many sane-minded observers… because it provided an opportunity for the apex Court to settle the matter, once and for all, and to remind Sher Zaman (and his supporters) that they cannot hold the entire judicial system hostage with their hooliganism.
Do such people no longer need to abide by judicial orders? If someone can convene a hundred black-coats, will he/she not be held in contempt?
The Honorable Supreme Court constituted a special five-member ‘larger bench’ (headed by the Chief Justice himself) to hear the appeal. Sher Zaman appeared before the honorable Supreme Court (as a concession of sorts?) and expressed his “regret” at the events. No apology. Just a simple (defiant) regret. Because, after all, why would a lawyer demean himself so as to apologize to a court of law.
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It was expected that the Honorable Supreme Court would sternly reprimand Sher Zaman, and direct him to appear before the LHC to explain his stance. Regrettably, however, the Honorable Court did no such thing. It simply directed the Registrar of the LHC to submit a report concerning the relevant facts and urged the LHC to “await the outcome” of Supreme Court proceedings, which has now been adjourned until October. And a very senior member of the legal fraternity (on the assurance of anonymity) confined to this author that “October will never come, and this case will not be heard again”.
For somebody who wears the black coat, and is in the business of defending the Honorable Court in public, this is a demoralizing order. It reads more like a judicial stamp on the expanding cancer of wu-Kulaga di. And, most importantly, it undermines the High Court and threatens to unravel the judicial authority of our constitutional paradigm.
Especially when we have all seen the videos and footages of sloganeering and stone pelting? While on the issue, why does the larger bench consist only of (honorable) Punjabi judges?
In the wake of these events, a few questions must be (respectfully) asked of the honorable Chief Justice of Pakistan: why was a special five-member bench constituted to hear the Sher Zaman appeal? Why was it not treated as any other case, to be heard by a (regular) bench? What makes Sher Zaman, and contempt by lawyers, so special? Also, why was Sher Zaman not directed to appear before the LHC, forthwith?
Especially when we have all seen the videos and footages of sloganeering and stone pelting? While on the issue, why does the larger bench consist only of (honorable) Punjabi judges? Is there any truth to the whispers that a settlement is afoot? Are our courts of law negotiable institutions? Will the law yield to the street power of the black coats, as it did so many times during the checkered years of Chaudhary Court?
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Also, how would this impact the judicial value and authority of the High Courts? Does this mean that only the weak and emaciated are required to abide by orders of the Court, while others (who can exert notoriety the will be dealt with softer hands? Is street power an antidote to law? Is the new law of our land sympathetic to those who can gather enough people to block the GPO Chowk at Mall Road? Do such people no longer need to abide by judicial orders? If someone can convene a hundred black-coats, will he/she not be held in contempt? If so, does this law only apply to lawyers, or will the same rule apply to members of political parties and proscribed organizations?
The relevant provisions of law (as well as judicial precedents) require that the alleged contemnor must appear ‘in person’ before the Court, in order to answer/respond to the show cause notice
Also, if LHC orders and proceedings are not to be obeyed (immediately), should we simply shut down these (and other subordinate) courts? Or at least declare that High Court orders are optional, and can be ignored if enough stones have been pelted at our cathedrals of justice? Also, does this dictum only apply to those wearing black coats, or should Allah Ditta follow the same?
Just as importantly, if Sher Zaman is allowed to escape the grasps of LHC, even after all the sloganeering and vandalism, why did we convict others (in the past) for contempt of court? Did any of them commit a more egregious contempt (physical and verbal), as compared to Sher Zaman? Should we just scrap the contempt law… or at least make exceptions for all lawyers (and powerful politicians)? Better yet, should we institutionalize certain segments of the society to be beyond the reach of judicial verdict? Should we amend Article 25 (Equality) to state that certain individuals are ‘more equal’ than others?
Read more: Pakistan’s culture of Politics thrives on the many Nihal Hashmis
Benazir Bhutto’s murder appeal… a far more pervasive and consequential struggle for the ‘heart and soul’ of our judicial system is being waged in the ongoing Sher Zaman contempt proceedings.
This is a watershed moment in our judicial history. The genie of wukulagardi, which came out of its proverbial bottle at the start of the Lawyers Movement, has now become uncontrollable. And few courageous souls (e.g. Syed Mansoor Ali Shah) are trying to stand up to this Frankenstein. In case the honorable Supreme Court does not support this cause, or lends leniency to Sher Zaman and his supporters, the final hope of countering this menace will perish. And with it, so will the remnants of judicial authority.
Post-Script: I have been advised that writing this column might amount to contempt of Court. In such eventuality, I only ask to be treated as though I too was President of Multan Bar Association.
Saad Rasool is a lawyer based in Lahore. He has a Masters in Constitutional Law from Harvard Law School. This piece was first published in The Nation. The views expressed in this article are the author’s own and do not necessarily reflect Global Village Space’s editorial policy.