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The doctrine of sub judice

By Babar Sattar

There is a sinister narrative that is being aggressively marketed by prophets of doom these days. Its bottom line is that the heads of state institutions are puppets lacking free will, human agency and integrity and are incapable of making decisions honestly and objectively.

A new industry is booming within our mainstream media backed by social media. It has perfected the art of smearing reputations and casting aspersions not on the basis of vile actions or verifiable facts but on the basis of remote linkages, imagined conflicts and a lot of conjecture.

Right before the appointment of the new army chief we saw a vicious campaign against him. Its bottom line was that he was being appointed due to extraneous considerations and was otherwise unfit for the job. Upon the nomination of the new DG ISI, a similar campaign was run against him. We are now witnessing a malicious campaign against the next chief justice. Whatever the intentions of those maligning individuals who are about to head vital state institutions, the effect is bringing these institutions into ridicule and hurting their credibility.

These campaigns fit perfectly within the larger conspiratorial mindset entrenched in Pakistan. Everything that happens here is part of a grand design conceived by evil powers and is being meticulously executed by hidden hands and shadowy forces. Everyone is a pawn in this game, a puppet being controlled from behind the curtains, mostly oblivious to being so controlled. Everyone is corrupt or corruptible. This thinking is rooted in fatal defeatism that feeds on a lack of self-belief cultivated by an acute sense of disempowerment.

The army chief’s appointment is critical because, notwithstanding what the law says, in real-life Pakistan he is the most powerful individual in the country. His power doesn’t flow from his intimacy with the PM but from the institution he heads, the resources he controls and our chequered history where he can either play the arbiter or the usurper if he so chooses. An army chief is no one’s man. Any leverage that the PM might have ends as soon as he is appointed. From there on, Newton’s third law applies: for every action there is an equal and opposite reaction.

The CJ heads a parallel state institution which is not subservient to the executive. Under our constitutional scheme, the executive or the PM have no role or discretion in appointing a CJ. The date of the elevation of a judge to the Supreme Court determines his seniority and the senior-most judge becomes the CJ when an incumbent retires. The PM can’t appoint a CJ, can’t remove him and can do him no favours. It is the CJ who heads the judiciary that holds the executive to account. He is no one’s man.

The campaigns against the army chief and the CJ are inspired by the belief that anyone who hasn’t already decided that the PM must be thrown out immediately, whether by hook or by crook, has been corrupted. In our polarised and bitter polity, suggesting that it isn’t for an army chief to facilitate the removal of the PM or for judges to decide matters on the basis of subjective, personal views – or even to ask what will happen next and how mass corruption will be eradicated even if the PM is removed – is projected as a strategy to save the PM by those on the take.

Amid such polarisation, there are unfortunate events that strengthen the growing belief in puppetry. The speaker refusing to allow debate within the National Assembly around the PM’s speech justifying his family’s ownership of the London flats on the basis that the matter is sub judice is one such event. Is it right for the PM to hide in court behind Article 66, which states that no member shall be liable in court for anything said in parliament, and hide behind the doctrine of sub judice in parliament?

What is the purpose of endowing parliamentarians with greater freedom of speech under Article 66? Did the National Assembly and its committees not discuss the government’s inquiry bill, passed with the declared object of facilitating the Panama inquiry – a big political, legal and moral issue of public interest in Pakistan as it implicates the PM in a corruption scandal? Will debate on the opposition-sponsored Panama bill approved by the Senate be suspended because the matter is sub judice?

In prohibiting debate on the PM’s speech regarding his wealth in the backdrop of Panama, was the speaker trying to ensure that such debate doesn’t prejudice the PM’s interest in the case pending against him? In doing so, did he consider that after every hearing of the case or every PTI press conference, cabinet members and minions of the ruling party hold forth outside the SC or at PID, discussing the case threadbare and defending the PM while the case is sub judice?

Did the speaker consider that Article 204 (which vests in court the power to punish someone who “tends to prejudice the determination of a matter pending before the court”), Article 63 (which bars propagation of opinion that tends to ridicule the judiciary), Article 68 (which prohibits debate in parliament on conduct of judges) and Article 66 (which protects free speech within parliament), collectively create rights that require balancing – to simultaneously uphold public interest in free speech, ensure fair administration of justice and maintain the sanctity of institutions?

Did he consider that with the Panama issue having already been discussed to death by the PML-N, PPP and PTI and widely commented upon in print and electronic media, free speech in relation to the matter at this juncture doesn’t threaten the public interest in the fair administration of justice? Did the speaker consider that, having been elected on a PML-N ticket twice since 2013, the exercise of his discretionary powers to scuttle debate in order to protect the PM’s interests in the Panama case would be seen as partisan?

The doctrine of sub judice is antiquated and needs to be buried in any event. It was conceived in the context of jury trials to prevent peers of the accused from being influenced by public comment in relation to facts that they were sitting in judgement over. The object was to uphold the right to fair trial of an accused and the linked public interest in the impartial administration of justice. Any sense the doctrine made was during the pre-information age. Back in the age of printing press, the doctrine, even if misconceived, was at least enforceable.

The evolution of technology has now ended the control of a few over information and its publication and dissemination. With Facebook, Twitter and WhatsApp, everyone with a smartphone is a publisher. In matters of public interest, the doctrine of sub judice is no longer enforceable. And it makes no sense in judge-driven adversarial litigation systems in an age where judges can no longer isolate themselves from information that will inadvertently come to them.

Conceptually, the doctrine is also fundamentally flawed. It is rooted in the same thinking that denies us agency, critical thinking ability and objectivity. It doesn’t believe in the human ability to decipher relevant facts from the marketplace of information and ideas. It seeks to curtail freedom of speech to protect judges from being influenced by the views of others. It suspects judges of being cowed by vocal opinion and pressured into deciding matters against their conscience to court popularity.

If this theory and its assumptions are right, what hope of fairness and justice do we have in this post-modern age of information and technology? The way forward is not more secrecy in chambers of justice but in more transparency and openness in its processes and in the appointment of judges with a spine who possess the ability to distinguish right from wrong and who in deciding cases will be guided by the letter of the law and the courage of their convictions as opposed to angry news conferences and the 24/7 news cycle.

The writer is a lawyer based in Islamabad.

Source: Daily The News

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