Judicial PPP: Punishing the Prince’s Petulance

Bilawal Bhutto delivered a speech to commemorate the anniversary of his grandfather’s execution, which was ordered by the Supreme Court at the behest of the military dictatorship in 1979.  Mr. Bhutto asked for the Court to overturn his grandfather’s case, apologise for his murder, and went on to question the loyalty of justices to the democratic order.

These statements have prompted the Supreme Court to take notice of the speech, likely examining whether the young Bhutto committed contempt of court. While it is uncertain how the Court will decide, the justices should evaluate the cost of their current trajectory.

Before the Court takes action in this case, they should remember the vast array of problems confronting Pakistan’s populace, which manifests in murder, torture, rape, and illegal detention. This includes a dangerous sectarian campaign that has left hundreds of Shia dead and a military operation in Balochistan that incubates massive human rights violations. These newly developing cases only add to the massive backlog of active cases that must be resolved by the Court, which shows how dangerous it is for the justices to take notice of Bilawal Bhutto’s insults.

The Court could use an alternative argument to justify taking notice of insults from political elites like Mr. Bhutto. They could argue that respect for legal institutions trickles down from elites, and if elites continue to mistreat and disregard the will of the court, the populace will do the same and lawlessness will worsen. Therefore, one could argue that judges should use the contempt charge liberally against any elite insulting their credibility, in order to foster obedience to the law amongst the general public.

Justice Markandey Katju, of the Indian Supreme Court, wrote a paper that attacked such a liberal use of contempt charges by the Court. He explained that judges in a democracy should not be concerned with public insults by telling the following story.  When he was Chief Justice of the Madras High Court, two fellow judges approached Judge Katju looking upset and told him that individuals were distributing pamphlets that made allegations against them outside the courthouse. Justice Katju writes,

I went through the leaflet, and then asked them “Is your conscience clear?”  They said it was.  Then I laughed and told them to just ignore the leaflet, otherwise they would get blood pressure.  When I said this they too started laughing, tore up the leaflet and threw it into the waste paper basket.  I told them, that this was only an ‘occupational hazard’ of a Judge, and in a democracy people say all sorts of things, which a Judge should learn to ignore as long as his conscience was clear.

The “occupational hazard” of being a judge in any democracy is that there will always be a winner and a loser in a case, and the loser has a right to express himself, even if that means personally insulting the judge.  Justice Katju explains that,

their [judges’] authority will come from the public confidence, and this in turn
will be an outcome of their own conduct, their integrity, impartiality, learning and
simplicity. In a democracy it is not criticism by a few persons which brings a
Judge into disrepute or shakes his authority, it is his own conduct (or rather
misconduct) which can do so.

As such, the Pakistani Supreme Court will only build its credibility through well-reasoned legal decisions establishing fair and repeatable legal standards addressing issues that are important to the lives of average citizens.

That being said, parts of Mr. Bhutto’s speech were absolutely biased allegations against the Court. In his speech, he taunted the Supreme Court judges by claiming, “once a PCO judge, always a PCO judge.” This was an insult to remind the public that Chief Justice Iftiqar Chaudry was appointed to the Supreme Court by a military dictator, Musharraf, and that he took his oath under military emergency rule. This insult to the CJ relates to Bhutto’s argument that the Supreme Court continues to work as an agent for the military establishment, not the people of Pakistan.

Leaving aside his presumptuous tone in addressing the apex court of the nation, Mr. Bhutto brings up a valid point about the case against his grandfather, Z.A. Bhutto. The Court has continually failed to address its past decisions, which were passed under the duress of military rule. While politicians can attempt to cover up or forget the past, the Court’s power is derived from its ability to uphold precedent. Judges can rely on the history of past judgments to qualify their current actions, but are also bound by what they have already decided. The ghosts of the Bhutto decision seemed to resurface with the Memogate inquiry, which allowed the Court to take action against democratic figures based on military allegations.

If an unjust precedent is not directly overturned by a judgment, it will continue to poison the well of judicial thought. Therefore, rather than punishing Mr. Bhutto for allegations against judges, the Court should disprove his suggestion that they are controlled by the military.  This can be accomplished not only by overturning the Z.A. Bhutto case, but by continuing the judicial assault on the Army’s illegal actions through the disappeared person’s case. Perhaps if the Court wishes to charge any individual with contempt of court, it should be the counsel for the military agencies who has failed to produce witnesses for a case involving the enforced disappearance of thousands of civilians.

Mr. Bhutto’s speech was not a proper legal analysis or plea to the Court, but a biased attack as payment in kind for the Courts continual confrontation of his party’s ruling administration. However, the Court should not spend any of its precious time evaluating Bhutto’s speech for ‘damage’ to the Court’s credibility, because the only way to build credibility is through sound judgments. As such, the Court should reevaluate its precedent cases and continue its current trend of holding the Army accountable for its abuses if they wish to garner support and respect from the public at large.