THE much-anticipated change of guard at the Supreme Court brings with it hope and fresh expectation. The idealism and promise of change cultivated by the rule of law movement and steadily squandered in the years following the restoration of Chief Justice Iftikhar Chaudhry does make one weary of imbibing hope again.

But the need for change within the apex court cannot be overstated and the amiable, cultured and reflective Justice Tassaduq Jillani assuming the office of chief justice is an additional factor encouraging one to suspend disbelief.

The recently released judgement on the National Insurance Company Ltd case provides a sample of how things have gone awry at our highest mantle of justice.

This judgement is a useful sample not because it is a bad decision; courts reach decisions everyday and it is natural to get them wrong every once in a while. The NICL judgement is instructive because it highlights the functioning of the apex court that is focused on producing outcomes and not just passing judgement on what is legal and what is not.

The ruling doesn’t tell us who plundered millions in the NICL scandal, what laws were violated and how, what offences were committed and what evidence has been considered in condemning a few civil servants on the basis of first impressions.

This judgement, lacking rigour, logical reasoning and deliberation, is a natural outcome of the manner in which suo motu proceedings are conducted in Court One largely devoid of the need for any legal assistance provided by counsel.

The prime casualty of the NICL judgement is Qamar Zaman Chaudhry, the newly appointed chairman of the National Accountability Bureau, now rendered dysfunctional.

The charges against the chairman NAB are two-fold. One, as additional secretary he did not pre-empt the appointment of Ayaz Niazi as chairman NICL (whose name had been included in a ministerial summary along with two other candidates) and is thus liable for an omission that allowed the appointment of Niazi as chairman NICL.

And two, as interior secretary he failed to prevent the transfer of Zafar Qureshi out of the Federal Investigation Agency, who had been appointed as investigator in the NICL matter by the Supreme Court and was transferred out by the Establishment Division on the recommendation of the DG FIA through a summary that was routed through the interior ministry, and is thus liable for contempt of court. Interestingly, the contempt matter has been pended to a date in office reflecting lack of urgency in the matter.

Reading the judgement and the exhaustive detail about the movement of summaries within ministries you get a sense that Qamar Zaman Chaudhry, Abdul Rauf Chaudhry (then establishment secretary and now federal tax ombudsman) and Nargis Sethi are the prime culprits in the NICL matter.

The actual scandal — the buying and selling of land at exorbitant prices, illegally and without land delivery — has somehow been lost in the court’s narrative.

The content and timing of the NICL judgement raise larger questions. Do executive appointments fall within the scope of the executive or the judiciary? It is one thing to review the integrity of the decision-making process where conflict of interest or nepotism is written all over an appointment and another to use procedural formalities to knock out undesirable appointees after second-guessing the wisdom of their appointment.

The Supreme Court has previously suggested that the chief justice ought to be consulted while appointing the chairman NAB. In the Fasih Bokhari case, Justice Asif Khosa writing for the court settled the issue by clarifying that such consultation was not mandatory.

Let us assume that Qamar Zaman Chaudhry is a terrible choice. But he has been appointed in accordance with the law after due consultation. If he falters, we have the PML-N and the PPP to blame. Should courts question the wisdom of bad executive choices?

What standard of proof does the Supreme Court require before holding individuals blameworthy as a prima facie matter? Given that the apex court is not a trial court and the guilt of an individual is to be determined after trial through evidence that establishes beyond reasonable doubt the illegal act and guilty intent of the accused, on what basis does the court form prima facie opinion during summary proceedings?

How do you ensure that justice is seen to be done in cases where the court by taking suo motu notice becomes the complainant itself? Do the conventional principles of justice that an act of court should prejudice no man and that every man is innocent until proven guilty, hold in Pakistan as well? If so, does preliminary declaration of guilt by the Supreme Court not undermine due process rights of individuals under Article 10-A of the Constitution?

Should the court pass strictures against individuals in suo motu cases at all when their innocence or guilt cannot be determined except through a trial by a subordinate court that is bound by observations of the Supreme Court and when the grounds for review of a judgement by the court itself remain extremely narrow?

If the end result of suo motu corruption cases is that actual culprits roam free but bureaucrats obliquely involved with the matter are tried, are we helping or hurting our civil service?

It is about time that the Supreme Court revisits the scope and manner of exercise of jurisdiction under Article 184(3). It is important that there is clarity on the matters that are amenable to suo motu and the nature of remedies that can result from the exercise of such authority.

It is essential not to use suo motu powers to encroach upon the province of the executive or undermine due process rights of individuals or create legal and commercial uncertainty.

The Supreme Court under Chief Justice Chaudhry assembled a system of accountability in which the media functioned as the complainant, the cheerleader and jury and the court became the investigator, prosecutor and judge.

Notwithstanding initial enthusiasm about this makeshift system, the experiment hasn’t worked. We must go back to building permanent sustainable structures wherein investigation and prosecution fall within the executive’s domain, the court acts as a neutral arbiter not a crusader and the media remains a whistleblower but not an interest group.

The writer is a lawyer.

sattar@post.harvard.edu

Twitter: @babar_sattar