A heavy hearted judgment

2018-04-30T23:35:08+05:00 Saad Rasool

Disqualification of Khawaja Mohammad Asif, the (former) Defence and Foreign Minister of Pakistan, through judicial verdict of a three-member bench of the honorable Islamabad High Court (IHC), comes as no surprise in the post-Panama jurisprudence.

Those who are trying to spin this judgment as ‘the next link’ in some predetermined judicial conspiracy to overthrow the PML(N) establishment are wrong. This verdict is simply a reiteration (and application) of the judicial dicta laid down by the honorable Supreme Court in its 28th July, 2017 judgment: that misdeclaration (under oath) on the electoral nomination forms, by any candidate, falls within the purview of Article 62(1)(f), and thus warrants disqualification (for life).

The facts concerning Khawaja Asif’s case are relatively simple. As observed in the unimpeachable reasoning of the larger bench of IHC – authored by the prolific Mr. Justice Athar Minallah – our former Foreign Minister was (admittedly) under an employment contract with International Mechanical and Electrical Co. in the UAE, drawing a hefty salary each month, which was never disclosed in the 2013 nomination forms. In fact, as observed in the judgment, “the express terms and language” of this employment contract “unambiguously shows that it was for employment on a full time basis”, drawing AED 50,000 per month. The honorable court observed that Khawaja Asif “could not show a single document to even remotely suggest that the income as salary received from the employer […] had been declared in the nomination papers”. And that, embarrassingly, “the list of employees of the Company, even today, includes the name of [Khawaja Asif] at serial no. 303” of the roster of company employees.

For some odd reason, the defence tried to argue that the employment contracts between Khawaja Asif and the UAE company “did not reflect the intent of the parties”. And that the only purpose of this “employment” was only meant “to fulfill the requirement of the Labour Laws in the United Arab Emirates” for the purposes of obtaining an Iqama (which had been attached to the 2013 nomination forms). To this end, the honorable Court observes that Khawaja Asif “has taken a stance which tantamounts to acknowledging that he had executed a false contract with the intent of deceiving the laws of another sovereign State”, which in itself attract legal consequences.

The honorable Court clarifies that the mere fact that Khawaja Asif had disclosed his Iqama, was not the issue at hand. In fact, anticipating another barrage of misdirection from PML(N) leaders (about “mujhe kiyo’n nikala”, or “Iqamay pe nikal diya” tirade), the honorable Court clarifies that “Iqama is merely a residence visa issued by the immigration officials. In the instant case, the non-disclosure was that of the employment […] and the salary per month received thereunder.”

In the circumstances, the honorable judges candidly observe that “we have deeply pondered but could not persuade ourselves that this deliberate and willful non-disclosure was bona fide or honest omission”, resulting in the immutable conclusion that Khawaja Asif “was not qualified to contest the General Election of 2013 from NA 110, as he did not fulfill the conditions described under Article 62(1)(f) of the Constitution”, as interpreted by earlier judgments of the honorable superior Courts.

To the extent of legal questions involved, there can be no cavil with the reasoning of the honorable Court, or the manner in which it interpreted and applied Supreme Court precedents concerning Article 62(1)(f) of the Constitution.

The more interesting facet of the honorable ICH’s judgment, however, is the tone and lament with which it has been authored. It is almost as though the honorable Court could foresee partisan rhetoric about the verdict being ‘anti-democratic’, and decided to preempt this criticism with humility and poise.

Specifically, with a “heavy heart”, the last few passages of the judgment note how “it is not a pleasant duty for any Court to be called upon to examine and exercise powers of judicial review which may lead to an elected representative being disqualified” from Parliament. In fact, almost responding to an unasked question (is judiciary trampling on the alleged supremacy of Parliament?), the honorable Court observes that “while exercising powers of judicial review, the judiciary claims no supremacy over other organs and that it is a duty assigned to the Courts to see that the Constitution prevails.” Almost remorsefully, the honorable Court clarifies that “when political forces, instead of settling disputes at the political forums, particularly the Majlis-e-Shoora (Parliament) resort to the Courts, it has consequences not only for the institutions but the litigant public as well. This conduct of political forces lowers public confidence in the Legislature on the one hand and on the other hand exposes the institutions of the judiciary to controversies of adversarial politics.”

By way of advice, the honorable Court adds “the political forces are expected to settle their grievances before the political forums rather than taking the previous time of the bona fide litigants awaiting justice to be dispensed.” Acknowledging Parliament as “a symbol of unity of the Federation and the peoples will”, which “deserves utmost respect”, the honorable Court observes that “it is ironic that Pakistan is amongst the few countries where a formal code of ethics and conduct for Members of the Majlis-e-Shoora (Parliament) and the Cabinet has not been prescribed so as to avoid situations such as have been observed in the facts and circumstances” of Khawaja Asif’s case.

This tone and tenor of the honorable Court is obviously in response to the scathing (and unwarranted) criticism faced by our judiciary. And no one can blame the honorable judges for having to adopt this tone, in the midst of a political narrative that is bent upon casting the judiciary as a partisan player. In the circumstances, the judges (who, being part of our society are not immune from the politico-media rhetoric) now feel compelled to declare their democratic credentials. Their public statements and judicial verdicts consistently swear allegiance to the democratic process. And this unspoken institutional compulsion – a circumstantial imperative – is a sad consequence of the ruling party’s political sloganeering (in which Constitution and the judiciary is an enemy of the ‘vote’).

Perceived judicial impartiality, in a democratic society, is just as important (if not more) than the actual impartiality of the judicial process. And the entire citizenry, including the polity, must participate in protecting this institutional creed from being swept away in the emotion of momentary politics.

 

The writer is a lawyer based in Lahore. He has a Masters in Constitutional Law from Harvard Law School.

saad@post.harvard.edu

@Ch_SaadRasool

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