Panama Case And Reconstructing The Ideals Of Justice
This article is in response to Maryam S. Khan’s piece titled ‘‘Mega political’ judgment’ which was published by the Daily Times on Friday, April 21, 2017.
Ms. Khan makes a convincing argument that in cases of mega-political nature such as the Panama Leaks case, the judges have a lot of political factors to consider before making a judgment. Therefore the judgment of the case has been a politically logical one: not throwing out the government and causing snap elections but ensuring that the other side does not feel it has been let go scot-free either. She further substantiates her argument by claiming that since the judiciary is a conservative institution, we should not expect radical changes from it anyway, and therefore questions of politics should be left for the political domain. It was her last statement however which proved to be the most interesting for me: ‘we would be better off taking the long road to strengthening our institutions, supporting and respecting the democratic process, and exercising our political rights to strategically engage with the imperfect and messy world of politics instead of relying on judicial institutions to judge the fate of our governments.’
This author, however, disagrees with certain important parts of this analysis and most importantly of its conclusive point. Believing that the Panama Leaks case was purely a political case is an incorrect and even dangerous assessment. And advocating that our courts shouldn’t have even touched the case in the first place and to legitimize their failure to do justice by equating it to the conservatism of an institution are also two ideas that I would disagree with.
Before I begin, however, I need to give some respect and deference to Ms. Khan, a former assistant professor at LUMS and an IDEAS fellow. As only a student of law, I cannot hope to compete with her on the understanding of legal institutions but I have to try because her conclusions are very worrisome for me.
To begin, let us not forget that wherever the reality might lie, the law claims to have an aim in a civilized society. It is this aim from where the legal systems and the courts gain their legitimacy from. That aim is to do justice. And this requirement to do so is very different from the aim of politics. Politics, however, was not made by society to do justice. Politics aims to reconcile different class interests in society on the issues of governance. It is not law but politics which decides that our governments and its officers and functionaries will be held accountable for their use of state power. But it is law and not politics which must then hold them accountable. While the interplay of law and politics is well known, however the law, for the purposes of its legitimization to fulfill its role, pretends to be insulated from it and other concerns. For the law has a higher task, a moral task that it must achieve with a passionate unitary drive: to do ultimate and complete justice equally. And where there have been many attempts by philosophers to define what the meaning of justice is, we all can agree that allowing a prime minister to walk free from corruption charges because the state institutions which are supposed to investigate him are not carrying out their task due to his abuse of authority is certainly not one of them. It is, in fact, an example of a complete failure of justice.
Where Ms. Khan shows this case as a mega-political one, I see it as a mega-legal one. A case in which the constitutional machinery of the state has failed and there have been abuses of authority by the incumbent Prime Minister. The politics of this case cannot be allowed to distract us from these very legal concerns. Therefore the political considerations the majority bench had to make in deciding the case, as real as those were, have to be seen as more than logical evaluations of those considerations and rather as compromises of their aim to do justice. The court ideally, after all, should not be worried about its self-preservation, the probability of its judgment being enforced and the power relations between institutions. Where one would be a fool to suggest the court is not mindful of such considerations when deciding cases of a political nature, however, one cannot use this reasoning as a pretext to argue that the court should not take up such cases in the first place. The concern for these considerations are valid for the purposes of post-judgment analysis (to understand what the judges were thinking), but they are not excuses which should be used to downplay the important role the courts need to play. If anything, our critiques should be focused on exposing the court when it fails to do complete justice in favor of political considerations. Our aim should be to show that ‘fairness, justice, and freedom are more than words; they are perspectives’ (even if just political perspectives subject to change). Our legal nihilism and skepticism should not run so far as to start suggesting that the courts and the law have no more role in doing what they were set out to do. We should rather be using our deconstruction to power our efforts of reconstructing our courts, our legal system and our law.
This ‘long road’ to the strengthening of our institutions, which is offered as an alternative by the author, is an oft-repeated yet hardly ever elaborated phrase. What is this long road? Where is it? Is it an allusion to the elections? A process which a judicial commission found to have an astonishing amount of unverified votes, but could not attach responsibility to the (same) ruling party for it because no investigating agency investigated the same seriously? Does the author not recognize that maybe this nation does not have the gas or the time to take long winding roads to abstract goals, while there are roads specifically built in our Constitution to shorten that time? That these ‘long roads’ are what the political establishment want us to take, since that way they can ensure the system can continue to be rigged against us? Our focus as legal academics should be to deconstruct the realities of this state so as to reconstruct our rights and ideals and make them enforceable. These long roads that are advocated for should not become vehicles of convenience for the political establishment to do what they please, with the specter of military takeover or total instability hanging over our heads as a reminder of what is at stake if ‘justice is done’.
And while the courts are generally, as an institution, conservative in nature, ours have always shown to be uniquely proactive. They have upheld doctrines to support the abrogation of constitutions they themselves relied upon for legitimacy, they have set aside contracts between the government and international firms for the purposes of ‘accountability’, and they have ignored direct constitutional jurisdictional bars over doctrines that allowed them to judge constitutional amendments. Where we can see these trends as problematic, they are however in direct contradiction to the idea that the people should not have expected big change from a typically ‘conservative’ institution.
In conclusion, this author argues that rather than advocating long roads for institutional independence and political checks and balances on governments, and berating the court for taking up legal issues of a political nature such as Panama Leaks, we should continue to hold our governments and their officers accountable as per the law and Constitution at every instance, we should continue to keep knocking on the doors of the Supreme Court seeking justice even when it has failed to do so in the past and we should continue to hope beyond all hopes, that the Justices of the court will be brave enough to ignore the noise and do complete justice upon this nation one day. For it is in this effort and idealism where our salvation lies.
The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any organization with which he might be associated.