Juris(im)prudence

2018-06-19T22:50:42+05:00 Mohsin Raza Malik

Somehow evolving the constitutional jurisprudence in Pakistan ‘brick by brick’, the apex court has just delivered another ‘landmark’ verdict relating to the contentious question of disqualification of the legislators. Last week, a 3-member Supreme Court bench finally announced the much-awaited decision in the Sheikh Rasheed disqualification case. This bench was hearing a civil appeal against the decision made by the Election Tribunal, Rawalpindi, whereby an election petition seeking the disqualification of Awami Muslim League leader Sheikh Rasheed Ahmad on the grounds of nondisclosure and misdeclaration of assets has been dismissed. This SC bench simply chose to uphold the decision of the Election Tribunal while deciding this civil appeal. So, Sheikh Rasheed is now eligible to contest elections to become a member of the Parliament in Pakistan. One of the important aspects of this split verdict is the 28-page detailed dissenting note written by Justice Qazi Faez Isa. He declined to decide this case until as many as 7 questions raised by him are not conclusively determined by the apex court. He also requested the honourable Chief Justice to constitute a Full Court bench to determine these questions. However, the other two judges of the bench simply didn’t agree to this ‘idea’. They were of the view that constituting a Full Court bench to decide these 7 questions at this stage would undermine the very validity of the upcoming general elections.

Earlier in this month, another 3-member SC bench overturned an Islamabad High Court verdict, whereby PML-N leader Khawaja Asif was disqualified for life for holding an UAE Iqama. In this case, Islamabad High Court essentially relied on the well-known Panamagate judgment passed against deposed premier Nawaz Sharif by a 5-member SC bench in July last year. On the other hand, while deciding this case, this SC bench has apparently departed from the benchmark Panamagate judgment whereby the apex court evolved a sort of principle of strict liability vis-à-vis nondisclosure or misdeclaration of assets by a parliamentarian at the time of filing his nomination papers to contest elections. The critics of Panamagate verdicts believe that the apex court has not adhered to this principle of strict liability while deciding almost similar disqualification cases against other legislators, especially Imran Khan, Khawaja Asif and Sheikh Rasheed.

During the last one year, the apex court has been pro-actively and extensively determining the question of disqualification of the parliamentarians while exercising its extraordinary jurisdiction under Article 184(3) of the Constitution in addition to its ordinary appellate jurisdiction. During this period, the apex court has decided a number of disqualification cases against various parliamentarians, giving rise to some inconsistent, conflicting and contradictory legal principles to determine this important constitutional question. The apex court disqualified premier Nawaz Sharif and PTI leader Jahangir Tareen for being not ‘honest’ and ‘Ameen’ in terms of Article 62(1)(f) of the Constitution and 99(1)(f) of the ROPA primarily for misdeclaring or not disclosing their assets in their nomination papers. On the other hand, it simply chose to overlook the fact of misdeclaration of assets by the parliamentarians like Imran khan, Khawaj Asif and Shiekh Rasheed. So, there is a general perception that the apex court has applied different legal yardsticks to determine the similar disqualification questions against various parliamentarians. At present, PML-N leaders are activity criticizing this ‘judicial dichotomy’.

Articles 62 and 63 require some exhaustive and extensive pre-conditions for qualifying to be a Member of Parliament. Besides being a Sadiq and Ameen, he should practice obligatory duties prescribed by Islam and must abstain from major sins. Noticeably, there are a number of shortcomings and contradictions in the entire set of qualifications and disqualifications provided under the Constitution of Pakistan. Therefore, the apex court should have liberally interpreted these controversial constitutional provisions to avoid political and constitutional controversies. But regrettably, the superior judiciary only chose to narrowly interpret the terms ‘Sadiq and Ameen’. Under Article 189 of the Constitution, the decisions of the Supreme Court of Pakistan are binding on all other courts in the country. Indeed, the lowers courts and tribunals would find it difficult to follow these conflicting judgments while deciding the question of disqualification of any legislator. Similarly, this ‘jurisprudence’ evolved by the apex is also likely to open a Pandora’s Box of allegations against the aspiring parliamentarians in the country. Former CJP Iftikhar Muhammad Chaudhry has hinted at challenging the eligibility of PTI chairman Imran Khan under Article 62(1)(f) of the Constitution over allegations that he has fathered a ‘love child’. This would certainly an unfortunate and disgusting development ahead of the general elections.

In his dissenting judgment in the recent Sheikh Rasheed case, Justice Qazi Faez Isa has raised a number of legal questions, ranging from the nature and parameters of disqualification of legislators in consequence of non-disclosing/ misdeclaring their assets to the nature and scope of constitutional jurisdiction of apex court under Article 184(3) to try and decide a disqualification case against a legislator. He also raised the question regarding the length of period for which a legislator would remain disqualified once his is so declared by a court of law. Indeed, these pertinent questions need serious consideration. As a matter of fact, I have been raising and answering almost all these questions in a number of columns written by me since the apex court formally took up Panamagate case in November 2016.

I do personally agree to the verdicts and judgments delivered by the apex court in the disqualification cases against Imran Khan, Khawaja Asif and Sheikh Rasheed. I believe a legislator should not be disqualified as long as he is formally convicted by a court of law on some serious grounds of corruption or misappropriation. He should by no means be disqualified on any flimsy legal ground as Nawaz Sharif was disqualified for not disclosing his ‘unwithdrawn receivables’. In Pakistan, under Section 12(2) (f) of the ROPA, a candidate has to submit a statement of his assets and liabilities on a prescribed form at the time of filing nomination papers to contest an election on a seat of the parliament or a provincial assembly. However, in actual practice, filing a statement of income and assets has only been an insignificant legal formality. The ECP never tried to actively scrutinize, verify or otherwise investigate the statements of assets and liabilities submitted by the legislators. Therefore, it is not advisable to determine the honesty and truthfulness of a parliamentarian solely on the touchstone of his statement of assets and liabilities.

The question of jurisdiction of the apex court to disqualify a legislator, while exercising its extraordinary constitutional jurisdiction under Article 184(3), is indeed a fundamental question. But unfortunately, the crucial legal question of the maintainability of the disqualification cases in the apex court has neither been seriously raised nor adequately answered during any proceedings in the apex court. Despite the fact any party doesn’t object to the jurisdiction of the court, it is incumbent upon the court to properly determine this question itself. Article 175(2) of the Constitution states: “No court shall have any jurisdiction save as is or may be conferred on it by the Constitution or under any law”. 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. Therefore, just like any other organ of the government, the apex court is also supposed to remain within its defined constitutional parameters while exercising its powers. Election Commission of Pakistan (ECP) is an important constitutional institution which acts as a regulator for the legislators. According to Article 63(3), ECP is the exclusive legal forum or Coram Judice for conclusively determine the question of qualification or disqualification of parliamentarians.

The seven questions raised by Justice Qazi Faez Isa in the Sheik Rasheed case should have been referred to a Full Court branch as requested by him. The conclusive answer determined by the proposed Full Court to these questions would affect the political future of only those against whom the apex court has herd and decided the disqualification cases. The verdict of the proposed Full Court is unlikely to jeopardize the smooth conduct, or otherwise undermine the validity, of upcoming general elections. One hopes the apex court would readily take up this crucial matter in future as soon as any individual file a constitutional petition under Article 184(3) to seek answer to these seven crucial questions. These questions essentially relate to the future of democracy as well as the quality of democratic dispensation in Pakistan.

 

The writer is a lawyer and columnist based in Lahore.

mohsinraza.malik@ymail.com

@MohsinRazaMalik

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