ISLAMABAD  -  Justice Qazi Faez Isa of the Supreme Court has questioned the jurisprudence regarding disqualifications of parliamentarians developed by other judges through the Panama Papers judgment wherein Pakistan Muslim League Nawaz Quaid Nawaz Sharif was ousted and declared disqualified from being Member of the Parliament.

Justice Isa also expressed his concerns over the selective application of ‘principle of strict liability’ on the parliamentarians, observing that such exercise created legal uncertainty.

“We must make every effort to dispel any impression that different persons are treated differently. Justice must not only be done but be seen to be done too. Every endeavour therefore should be made to resolve the prevailing legal uncertainty,” observed Justice Isa in his 27-page dissenting note in a case seeking disqualification of AML Chief Sheikh Rasheed.

Justice Isa also noted that the ‘principle of strict liability’ was applied in Panama Case while it was not applied in PTI chief Imran Khan’s disqualification case.

Justice Isa further objected the issuance of disqualification’s declaration directly under Article 184 (3) against deposed Nawaz Sharif and without naming him noted: “Even though it was not held by this court that the candidate suffered from any inherent disqualification and if he had disclosed his said salary/asset he would have been disqualified.

Panama Case’s July 28 verdict disqualifying Nawaz Sharif and subsequent dismissal of Sharif’s review petition evidently advocates the principle of strict liability, observed Justice Isa adding that the same rule had not been applied in PTI chief Imran Khan case.

Legal experts are terming the dissenting note of Justice Isa as critical analysis or review of Panama Papers’ case judgments including April 20 judgment constituting Joint Investigation Team, July 28 Judgment ousting Nawaz Sharif and dismissal of review petition.

They further believe that an inference could easily be drawn from the instant dissenting note that judges of larger bench, which heard Panama Case, had not remained on their words, to follow the tightrope of law and constitution, and changed their opinion later.

However, another section of lawyers believes that the opinions of judges was changed after the investigation carried out by the Joint Investigation (JIT) in Panama Case.

The instant dissenting note of Justice Isa reproduced the observations given in April 20 judgment by now-retired Justice Ejaz Afzal Khan, Justice Sheikh Azmat Saeed and Justice Ijazul Ahsan.  

“Where none of the provisions of the Constitution or the Act dealing with disqualification requires a member of Parliament to account for his assets and those of his dependents, even if they are disproportionate to his known means of income, how could this Court on its own or on a petition of any person under Article 184(3) of the Constitution require him to do that, and declare that he is not honest and ameen if he does not account for such assets,”  Justice Isa’s dissenting note mentioned the observation of Justice Khan.

Justice Isa also mentioned the observations of Justice Saeed that, “In the above backdrop to hold that an MNA, who may (or may not) own an undeclared property yet his explanation for the source of the funds for acquiring such property, though legally irrelevant, is not acceptable, hence, such MNA is disqualified, is a legal absurdity under the laws of the Islamic Republic of Pakistan. It may be clarified that the Courts of law are concerned with the matters of law not morality. In no case, any person was disqualified under the said Article in the absence of an established and proved breach of a legal obligation or violation of a law. Article 62(1)(f) of the Constitution cannot be permitted to be used as a tool for political engineering by this Court nor should this Court arrogation unto itself the power to vet candidates on moral grounds, like a Council of Elders as is done in a neighbouring Country. Under our Constitutional dispensation, Pakistan is to be governed by the Representatives chosen by the people and not chosen by any Institution or a few individuals.”

The dissent note further stated, “Ijaz ul Ahsan, J, after elaborately and competently setting out the applicable legal provisions stated that only “a Court or Tribunal of competent jurisdiction” could determine whether a candidate had submitted a “statement of assets and liabilities which is found to be false in material particulars.”

“However the principles enunciated by his lordship (Justice Khan) in Panama Papers-I (April 20 judgment) were not discussed. Some may contend that the aforesaid observations in Panama Papers-I are at variance with Panama Papers-II and III,” observed Justice Isa.

Regarding the judgment on Sharif’s review petition, the Justice Isa stated, “Ejaz Afzal Khan, J, stated that the judgments of this Court cited by the other side were “distinguishable on facts and law”; the said cited judgments included the judgments in Muhammad Siddique Baloch v Jehangir Khan Tareen (PLD 2016 Supreme Court 97) and Sheikh Muhammad Akram v Abdul Ghafoor (2016 SCMR 733). The judgments in the cases Hassan Nawaz and Sadiq Ali Memon, which were relied upon in Panama Papers-III, were cases in which candidates were suffering from an inherent disqualification to contest elections because they were holding the nationality of another country.”

“It was not elaborated how they were distinguishable and why the legal principle enunciated therein was not applicable,” Justice Isa noted.

The dissent further stated, “once the facts of a case have been ascertained the applicable law is applied to arrive at a decision. However, when the facts are clear but different benches of this Court, comprising of the same number of judges, have taken divergent views the matter needs urgent resolution.”

Regarding entertainability of case seeking disqualification of a person under Article 184(3), Justice Isa is of the view, “ in Panama Papers-I Article 62(1)(f) of the Constitution, which provides that an adverse declaration with regard to a person’s sagacity, righteousness, profligacy, honesty and whether or not he/she is ameen, must be declared by a court of law, which was expounded to mean a court of “plenary” or “competent” jurisdiction which suggests the exclusion of the Supreme Court when exercising its extraordinary original jurisdiction under Article 184(3) of the Constitution.”

Justice Isa observed that matter needed early resolution when divergent views were expressed by different benches of the same number of judges of the top court adding that the applicable test with regard to elections and the qualification-disqualification of candidates was indeterminate and had serious repercussions, which assumed criticality in an election year.

“Confusion would result when returning officers throughout the country apply different Supreme Court decisions in accepting or rejecting candidates’ Nomination Forms. And confusion will be further perpetuated when, after the elections have been held, election petitions are filed before election tribunals designated to hear and decide them in the absence of a clear legal pronouncement on the subject,” Justice Isa expressed anxiety.

“Legal uncertainty may undermine the credibility of the electoral process, embitter political adversaries, encourage political commentators and the public to cast uncalled for aspersions on the returning officers, the election tribunals and possibly on this Court as well if the interpretation of the law favorable to a party is not applied.”

“Every endeavour therefore should be made to resolve the prevailing legal uncertainty. The eligibility of members of Parliament should be “decided in accordance with one single and definite measure,” he added.

Justice Isa in his dissent requested the Chief Justice Mian Saqib Nisar to constitute the bench, preferably Full Court, to decide 7 questions of law.

“Does every nondisclosure or misdeclaration in the Nomination Form result in the disqualification of a candidate or only those whereby one has circumvented some inherent legal disability to participate in an election?” the question include adding, “If a petition does not disclose the particular facts, on the basis of which disqualification is sought, can these be considered when subsequently disclosed in the affidavit-in-evidence of the petitioner or which may otherwise be discovered during the hearing before the tribunal/court?”

It further placed the question as to whether Article 225 of the Constitution exclude the application of Article 184(3) to election disputes adding, “if the answer to the foregoing question is in the negative, then is an election dispute regarding an individual’s qualification or disqualification a matter of “public importance” which requires the “enforcement” of a Fundamental Right and if so can it be determined under Article 184(3) of the Constitution?”

“If the answer to the foregoing question is in the affirmative, are the procedural and evidentiary rules governing election petitions and appeals under the ROPA the same as those governing petitions under Article 184(3) of the Constitution?”

“Does the ‘court of law’ mentioned in Article 62(1)(f) of the Constitution  include  the  Supreme  Court  when  exercising jurisdiction under Article 184 (3)?”

“If a candidate is disqualified on account of nondisclosure or mis-declaration does such disqualification subsist only till the next elections or is it permanent?”

“We are aware that most probably by the time the aforesaid questions are answered the tenure of the present National Assembly would be over. However, the determination of these questions is long overdue and must not be delayed further and should be settled finally,” stated Justice Isa.

He further stated that notices in this regard be also given to the Attorney-General for Pakistan, all the Advocate-Generals and the Election Commission of Pakistan.