- There is more to the short order than meets the eye
The baleful clouds engulfed the splendor of cathedral of justice, as the ominous shade portended the events to follow. The main doors remained shut, but for the select few, as the masses thronged the sidetracks. Ironies of the system were on full display. Rumors amok, the clock struck four.
When the arguments fail, the law falls short, or the rhetoric is intended for the public eye rather than the annals of legal scriptures, we infallibly resort to religion. It was manifest in the Victorian views urged by the former law minister. Reliance was also placed by the petitioner judge, the emissary of his wife, to remonstrate the alleged malicious ‘persecution’. It was only apt then, that, before announcing the judgment, the judge on the other side of the podium, read an injunction to announce that the judges remain accountable. To whom must they account, some differed.
The equities appeared to tilt one way. All ten, deciding the fate of another amongst them, declared the Supreme Judicial Council incapable of rendering a decision on the validity of reference. However, seven indicated the action was premature; three that it was malicious.
There is no cavil that the superior courts have reserved for themselves, fortified since the Sabir Shah cases in the first half of 1990s, the power to review a pending proceeding if the forum concerned lacks jurisdiction, the remedy available is merely illusory, or if the questions of mala fides are involved. Nevertheless, this power has been used sparingly, and more often than not, is exercised in trials by or in presence of media. Where popular justice is not desired, the more popular choice has been to demonstrate restraint and allow the original forum to make a determination.
One prays that scales have not shifted, yet again, in favor of pragmatism and expedience, at the cost of unadulterated and well-meaning justice. Across the board and equal for all. We know it too well now that injustice leads to tyranny and despotism. The natural corollary whereof is chaos
Show cause, one is repeatedly admonished by the superior courts, are not final orders. Yet, apropos the subject matter, notwithstanding the suo motu powers of the SJC, the show cause notice was declared as having ‘abated’ once the underlying reference was found deficient. Persecution is worse than punishment, albeit, only for the nobles. The rest, as the entrance doors had indicated, remain languishing in the sidetracks.
Be as it may, it was declared that the reference was not competent. Seemingly, the council can make a determination in a reference arising out of the same circumstances, upon letters written to the President, but cannot make a determination on a reference filed pursuant to purported failure to disclose properties.
Even more so, notwithstanding the bar in Article 211 of the Constitution, the court continues to exert jurisdiction under Article 184(3) to nullify the proceedings before the SJC. In the recent past, therefore, now two references have been quashed.
History is known to judge consequences more often than intentions. If the consequence of this precedent is to demonstrate lack of faith in the SJC, perhaps one should consider dispensing with the institution altogether. Why have it, when the trumping power is to be retained by the Supreme Court (even when the bench formed for the purpose potentially may even consist of fewer judges than the SJC itself).
This argument, however, is for the conservatives to make. The court maintains that it must act to render complete justice and must intervene for that purpose. One would defer, but to what end?
If, as the three lords imply, the reference was maliciously filed to target the independence of judiciary, it should have been quashed in toto. That is what the precedent dictated. In theory, at least, the judges interpret and declare but do not make laws.
The superior courts have laid down clear principles confining its powers to interfere in alike matters. Conspicuously, the prematurity of an action has not found itself in the folds of principles which may become the impetus for the Supreme Court to intervene. There is no doubt the noble lords are aware of this. Yet, such an end appears to have come to pass.
If the intent was to hold the judges more accountable than others and thus leave no space for speculation, why particularize the forum, mode, manner, and the parameters within which the accountability must take place? Is this not an executive mandate and subject to prevailing law? Are some entitled to fewer rights than others?
There are no qualms in supporting the cause of judges holding themselves out to a higher standard, but might one ask, shouldn’t the accountability begin from the day they become a judge? Alternatively, if one was not fit to be appointed in the first place, shouldn’t everyone partaking in the process of his appointment be equally held accountable?
Even so, the spectacular seven paragraphs (paras 4 to 11) of the judgment tell no tale of the considerations that bore with the noble lords, but rather conspire to construct a cage within which the judge shall remain confined for another 75 days, while chased by prying eyes. It was not enough of an embarrassment for him to face an incompetent reference, there must be provisions for another. A much more valid one, if there is scope.
Hence, although the law empowers delegation of powers, it was ordained that the specified individual, and none else, shall issue notices under specified law to the specified persons, to account for the specified properties. The Commissioner, mandated to issue the notice, is also given deeming jurisdiction over the judge’s children. All earlier proceedings, which may have vested any rights over the taxpayers, are terminated upon court orders. Although the properties concerned were purchased outside the period of time in which the tax returns remain subject to scrutiny under law (i.e. five plus one year), this fact is rendered immaterial.
The court further appeared at pains to draw such specific parameters as to define the timeline within which the notices shall be issued, the manner in which it shall be deemed to have been served, the form of response that shall be entertained, the way in which any delay or adjournment on account of non-availability of the respondents within the country is to be dealt, the number of days within which the proceedings shall be concluded as also the order written, the person designated to prepare a report thereupon and the exact manner in which it would shuttle from office to office until it reaches the SJC, which shall exercise its ordained suo moto powers thereupon. Hence, all but in name, we already have another complaint pending, the cause whereof is yet to be written.
The order, still, does not stop there. It goes beyond to propose the manner of the SJC proceedings if such report does not reach the concerned quarters, and indicates the action which may be taken against the judge and other persons upon such failure. Lastly, it arduously yearns to take away the right of appeal, a right much protected and preserved in history, so that the Commissioner’s order shall be the sole basis of any determination against the judge, except if the SJC deems it appropriate to take into account any appellate proceedings.
Hence, everyone portraying this a battle for independence of judiciary must hold their horses. This is no time to rejoice.
One prays that scales have not shifted, yet again, in favor of pragmatism and expedience, at the cost of unadulterated and well-meaning justice. Across the board and equal for all. We know it too well now that injustice leads to tyranny and despotism. The natural corollary whereof is chaos.
