Making a ‘memorable’ final order in the ‘historic’ Panamagate case, a 5-member SC bench has unanimously disqualified PML-N chief Nawaz Sharif from being a member of the Parliament. Consequently, the ‘dishonest’ parliamentarian is no longer the Prime Minister of Pakistan. This SC bench has also ordered the NAB to file a number of corruption references against NS and others before the Accountability Court. So the court chose to inflict the maximum punishment upon NS what it could do within the legal ambit of this case.
PML-N hawks have termed the Panama verdict a ‘judicial coup’ against their elected government. On the other hand, a large number of people are viewing this verdict as a precursor to an extensive accountability drive in Pakistan. They believe this verdict will go a long way in establishing the rule of law in the country. Now the superior judiciary can scrutinise the conduct and charter of the legislators. Certainly, through this verdict, the apex court has once again endeavoured to play its institutional role in the evolution of constitutional jurisprudence in Pakistan.
Before discussing the Panamagate verdict, let’s first briefly analyze the nature and scope of extra-ordinary jurisdiction of the Supreme Court under Article 184(3) of the Constitution. As a matter of fact, through this constitutional provision, the framers of the Constitution tried to adequately empower the apex court to effectively safeguard the Fundamental Rights of the citizens guaranteed by the Constitution. So, under Article 184(3), if there involves a “question of public importance with reference to the enforcement of any of the Fundamental Rights”, the Supreme Court can make an order of the nature what exactly does the High Court under Article 199 [precisely speaking, Article 199(1)(c)]. The aforementioned constitutional provision empowers a High Court to “make an order giving directions to any individual, authority, or the Government for the enforcement of the fundamental rights enshrined in the Constitution.
Article 187 of the Constitution gives ample powers to the Supreme Court to do complete justice in any case or matter pending before it. However, at the same time, it also imposes the jurisdictional restrictions, as provided by Article 175(2), on the exercise of such powers. Reading the aforementioned constitutional provisions together with Article 25 and 10-A, which strictly prescribes the due process and fair trial, the apex court can hardly hold a trial. In a nutshell, the apex court can only give directions to individuals or institutions while exercising its jurisdiction under Article 184(3). It can by no means give a declaratory judgement like a trial court.
There has been a tendency of stretching the jurisdiction of the apex court under this constitutional clause to the extent of taking cognizance of diverse legal and constitutional matters on the basis of wider interpretation of the fundamental rights. This practice was best observed during the chief justiceship of Iftikhar Muhammad Chaudhry. The apex court disqualified many legislators for possessing dual nationality. Regretfully, instead of revisiting this controversial practice, now the apex court has apparently expand the domain of Article 62 and 63 in Panama case by disqualifying NS for being not ‘honest’.
The Panama verdict can conveniently be divided into two main parts. In the first part, the court directed the NAB to prepare and file multiple corruption references against NS and others before the Accountability Court within six weeks. Moreover, the Accountability Court was also directed to decide these references within six months. The second part of the verdict is mere a declaration whereby NS was disqualified from being a member of Parliament on the basis of Article 62(1)(f) of the Constitution. The first part of the verdict is absolutely in accordance with the spirit of Article 184(3) as it involves making directions to the relevant institutions- the NAB, Accountability Courts etc. One should appreciate the honourable judges of the apex court for initiating a meaningful accountability process against the ruling elite.
The second part of the Panama verdict has not been widely appreciated and welcomed. Involving a crucial declaration vis-a-vis the serving Prime Minister, the disqualifying part of the verdict has just given rise to numerous legal/constitutional anomalies and political controversies. According to Article 63(3) of the Constitution, the Election Commission of Pakistan (ECP) shall decide the question of disqualification of parliamentarians within 90 days when this matter is brought before it. So, constitutionally, the ECP is the exclusive legal forum or Coram Judice to determine the question of qualification or disqualification of parliamentarians. Therefore, the apex court should have referred this question to the ECP to avoid legal and political controversies.
During the Panama case proceedings, one of the honourable judge of the bench remarked that it would be disastrous to make a hotchpotch of Article 62, 63 and 184(3) of the Constitution, Section 15 of the NAB Ordinance and Section 99 of Representation of Peoples Act ROPA to disqualify Parliamentarians. But strangely, the 5-member bench did the same thing while deciding this case. They essentially chose to disqualify NS by jointly reading the same constitutional and legal provisions. Carefully analysing the Panama verdict, NS was disqualified from being a being a member of Parliament primarily on account of a misdeclaration of assets. He failed to “disclose his un-withdrawn receivables constituting assets from Capital FZE, UAE in his nomination papers filed for the General Elections held in 2013 in terms of Section 12(2)(f) of ROPA”.
If a candidate fails to file his statement of assets and liabilities in accordance with Section 12(2)(f) of ROPA, the Returning Officer (RO) may reject his nomination papers under Section 14(3) of the same Act. However, the RO may also allow him to make amendment in nomination papers if he believes the defect is not of substantial nature. Similarly, the ROPA also provides him a remedy to submit another valid nomination papers. He can also prefer an appeal to a specially-constituted Tribunal against the decision of RO.
Section 12(2)(f) of the ROPA can only be invoked before the elections. Once a candidate is duly elected, Section 42A governs the practice of misdeclaration of assets by the Parliamentarians. After being elected, a parliamentarian submits a statement of his assets and liabilities to the ECP every year in terms of Section 42A of ROPA. So NS’s case more attracts Section 42A than the Section 12(2)(f) of the ROPA. Under ROPA provisions, the act of misdeclaration of assets is a cognisable offence and only a Court of Session can try this case. A parliamentarian can also prefer an appeal against conviction to the High Court. A parliamentarian can only be disqualified under Article 63(1)(h) of Constitution once his conviction becomes final. Strangely, in the Panama case, the apex court chose to instantly disqualify NS without any formal trial or conviction.
Article 62 and 63 of the Constitution are two distinct provisions that deal with parliamentarians’ qualifications and disqualifications respectively. Generally, these two provisions are confused with each other. In fact, Article 62(1)(f) relates to parliamentarians’ qualification rather than a ground for their disqualification. Once any person is duly elected, he should be disqualified on serious grounds instead of introspecting him to determine whether or not he is a Sadiq and Ameen.
At present, there is considerable confusion as to the length of period for which NS has been disqualified to be a Parliamentarian. Panama verdict is silent on this point. There are views that NS has been disqualified for life. In fact, no law in Pakistan prescribes a lifelong disqualification. Even a person with dual nationality becomes eligible to contest election as soon as he gives up his foreign nationality. Section 15 of the NAB Ordinance imposes 10 year disqualification on the convicted persons.
In fact, the apex court has disqualified NS under the most controversial constitutional provisions through adopting an extraordinary legal procedure while tentatively assessing allegations against him. Professor A V Dicey identifies three important principles or aspects of the very doctrine of rule of law. One of these principles is that no one can be punished or made to suffer except for a clear breach of law proved in an ordinary court in accordance with the ordinary and known legal procedure. Therefore, lynching individuals on flimsy grounds can give rise to infamous Machiavellianism or the Doctrine of Necessity. This practice can by no means help establish the rule of law in any polity.
The writer is a lawyer and columnist based in Lahore.
@MohsinRazaMalik
