The honourable Supreme Court has given its detailed reasons for dismissing the review petitions in the Panama case. And the judgment, authored by Justice Ejaz Afzal Khan, reads like an epitaph on the political career of Mian Nawaz Sharif.

This judgment has been criticized (scathingly) by PML(N) loyalists, and by a fraction of the legal community. The criticism – to the extent that it focuses on legal issues, as opposed to political tirades – needs serious consideration and debate. But before that, it is perhaps important to briefly review the contentions of the Petitioners, and the corresponding reasoning provided by the honorable Court.

The first objection relates to constitution of the bench, and the review petitions being decided by a 5-member bench, as opposed to the 3-members that oversaw the JIT proceedings. In this regard, the court’s reasoning is brief, perhaps even inadequate. The honourable Court points out that, in light of the unanimous judgment, this objection is only “academic” nature; especially when the Petitioners’ counsels “opted not to press the review petitions filed before the three-member bench”, which were accordingly disposed off. It would have been ideal for the honourable Court to elaborate this reasoning further; however, as established through a long trail of jurisprudence, if the Petitioners do not wish to press a point, there is no reason for the Court to decide it.

More to the meat of the case, the honourable Court turns to the issue of “unwithdrawn salary” of MNS, being the cause of his disqualification. In this regard, the Court reaffirms its earlier conclusion that “unwithdrawn salary”, accrued over a period of six and a half years, which “stems from a written employment contract”, was “an asset”, and had to be so declared in the electoral filings. Specifically, in the absence of a statutory definition of the word “asset” in ROPA, 1976, a dictionary/accounting meaning of the word had to be considered. In this regard, the Petitioner’s stance (unsubstantiated by any proof) that he had (verbally) waived this salary in January 2013, is of no consequence since electoral declaration had to be made according the record of 30th June, 2012, at which time this salary was “accrued and accumulated”. Also, the honourable Court points out that “had there been no admission”, on part of MNS, that this was in fact his salary, the honourable Court “would not have stepped in” to reach a conclusion. However, the Court could not “shut [its] eyes when an asset of the petitioner arising out of IQAMA (work permit) having surfaced during the investigation of the case and admitted by him to be his in no uncertain terms, was not found to have been disclosed in his nomination papers in terms of Section 12(2)(f) of ROPA.”

Next, the Court takes up the question of ‘disqualification without trial’. To this end, the Court concludes that MNS “wilfully and dishonestly made a false declaration on solemn affirmation in his nomination papers.” This ‘lying on oath’, the Court points out, is a “qualifying test” for all parliamentarians (under Article 62 and 63 of the Constitution), and any “concession” or “leniency” in this regard “would be a prelude to a catastrophe in politics”, which is “already touching the extreme” in our society. Also, the honourable Court points out that this is not the first time that an elected member has been disqualified, without a trial, in exercise of Article 184(3) powers. Precedents include Mahmood Akhtar Naqvi case (2012 PLD SC 1089), Sadiq Memon case (2013 SCMR 1246) and Najeeb Owaisi case (PLD 2013 SC 482).

The Court also elaborates how this ‘lying on oath’ cannot be explained away as a mere “unintentional omission”, especially by a politician who has now contested elections for over three decades, and is arguably the most seasoned politician of the country. In any case, the Court concludes that “it has not been pleaded by the petitioner that the omission to mention the asset was accidental, inadvertent or unintentional.”

Thereafter, the Court addresses the objection that MNS “has not been given a fair chance to vindicate his position”. Recounting lengthy arguments made before prior to, during and after the JIT proceedings, the Court concludes that the mere fact that it “did not agree with the Petitioner” does “not amount to denial of a fair chance to vindicate his position”.

Next, the honourable Court takes on the multitude of objections relating to the filing of references, stipulating its time-period for conclusion, and the appointment of a monitoring judge. In this regard, at the very outset the honourable Court clarifying that it will not be interfering with NAB or the Accountability Court, which “have been left on their own to proceed in accordance with law”, without being “influenced by any of our observations”. While on the point, however, the honourable Court deliberates on the need for monitoring by reiterating the “seizure and subjugation of all the important institutions of the State including NAB, SECP, FBR, State Bank of Pakistan, National Bank of Pakistan and Intelligence Bureau through the cronies and collaborators of the person at the peak as has been evidenced during the course of hearing”. In the circumstances, a 6-month timeline and a monitoring mechanism had to be put in place in order to guard against the trial being “delayed by any hardship or anything imponderable”, without interfering with the “decision-making process of the Trial Court”. Also, the Court points out that this is not the first time that monitoring of NAB cases has been done by the SC. Examples, in this regard (whether right or wrong), include the ongoing EOBI cases, and proceedings of the NRO implementation bench.

Perhaps the most debated (controversial?) portion of the honourable Court’s judgment is one paragraph in which the Court outlines the deprecation in our political morals. Specifically, the Court declares that a very high level “of integrity is expected of the holder of the highest elected office of the country”. However, in stark contrast, MNS “has not been fair and forthright in answering any of the queries made during the course of hearing”, he “never came forth with the whole truth”, and “tried to fool the people inside and outside the Parliament”.

This portion of the honorable Court’s judgment has been subjected to much criticism and debate over the past few days. All of the criticism focuses on the idea that the Court ‘should not have’ made such sweeping observations about the moral conduct of the former Prime Minister. However, no one – without any exception – has denied that what the Court has observed is absolutely true. MNS & Co. have not adequately answered the only question that mattered: where is the money trail? And their narrative, in and outside of the Courtroom, suffers from insufferable contradictions and infirmities.

Most notably, my brilliant friend, Babar Sattar, in his recent article, has articulated a nuanced critique of the honourable Court’s judgment. He has raised deep and penetrating issues that need judicious consideration in future jurisprudence. But Babar’s critique that the Court has failed in answering important questions – e.g. what are the limits to inquisitorial proceedings? Does media trial affect the SC? Does it perceive itself as a saviour? – is perhaps a little harsh. The only question before the honourable Court, in the limited review jurisdiction, was whether the original judgment had an “error floating on the surface of the record”. In answering this, the honourable Court could not have delineated the ambit of Article 184(3), or commented on the media trial, or indulged in a discussion about Iftikhar Chaudhary-esque ‘savior’ legacy. Had it done so, there would be even more reason to critique the judgment.

Should the Court dabble into morality? No. Our constitutional courts are only empowered to interpret and apply ascertainable standards of law. But has the Court set a ‘moral test’ in Panama cases? Absolutely not. The test for disqualification, per the Court’s judgment, is “lying under oath”. And there is nothing moral or judgmental about that. If someone lies or ‘misdeclares’ on a statement of oath, or in a court of law, and is called out for it, does that (alone) make the judgment moral in nature?

These are tough times for our polity as well as our jurisprudence. And the judiciary – more so than the politicians – must raise its bar in pursuit of unimpeachable jurisprudence. However, a critique of the judiciary (valid, as it may be) must not confuse the facts at hand: we have a politician that lied on oath in his declarations, told an entirely different story to the Parliament and the public, and changed it further, in the Court of law. And now, he is ridiculing the judiciary for having called him out on it.

 

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