Yet another anti-Nawaz verdict
Putting another nail in the political coffin of ousted premier Nawaz Sharif, a five-member bench of the Supreme Court of Pakistan has held that a parliamentarian would remain disqualified for life if he is once declared to be not a “Sadiq and Ameen” in terms of Article 62(1)(f) of the Constitution. Through this ‘landmark’ verdict, the apex court has finally determined the nature and length of disqualification of parliamentarians disqualified in consequence of a declaratory verdict by the court. So, now former Prime Minister Nawaz Sharif and PTI’s former secretary general Jahangir Tareen will permanently be ineligible to contest elections for the membership of the Parliament in Pakistan. In its judgment, the SC bench maintained that “we are inclined to hold that the incapacity created for failing to meet the qualifications under Article 62(1)(f) of the Constitution imposes a permanent bar which remains in effect so long as the declaratory judgment supporting the conclusion of one of the delinquent kinds of conduct under Article 62(1)(f) of the Constitution remains in effect”.
The apex court has passed a number of verdicts against the former Prime Minister Nawaz Sharif since taking cognisance of the Panamagate case in November 2016. Therefore, it was expected that this five-member SC bench would again deliver a harsher verdict while determining the length of disqualification of PML-N’s troubled leader. Now Nawaz Sharif has been perpetually barred from contesting elections to become a Member of Parliament. In April last year, the apex court passed an unprecedented order to form a Joint Investigation Team (JIT), comprising members from some investigative and intelligence agencies, to ‘thoroughly’ probe corruption allegations against the ‘godfather’. In July last year, Nawaz Sharif had to step down as prime minister after a SC bench disqualified him to be a parliamentarian. Later, the apex court also rejected NS’s review petition by maintaining that he had tried to fool the court and the people. Similarly, two months ago, the apex court debarred Nawaz Sharif from heading his political party after undoing all decisions made by him as a party head of PML-N since his disqualification last year. Noticeably, these verdicts have resulted in preventing Nawaz Sharif from taking part in the country’s electoral and parliamentary politics. So NS has been rendered politically dysfunctional altogether even without any formal conviction by Accountability Court in any corruption case, thanks to anti- Nawaz stance of our superior judiciary.
I was one of those few who appreciated and welcomed the apex court’s decision to formally take up the Panamagate case in November 2016. By taking this decision, the apex court obviously averted a big political turmoil in Pakistan in the face of the PTI’s planned ‘lockdown’ of Islamabad. However, soon after the commencement of Panamagate proceedings in the Supreme Court, I just realised that the SC didn’t have any proper or specific legal procedure to hear and conclusively decide this case. Instead of promptly solving the so-called Panama riddle, this case just opened a Pandora’s Box of allegations and counter-allegations. Everyone started openly discussing and commenting on this free-for-all case. Moreover, in the absence of any definite legal approach adopted by the apex court, the petitioners exclusively shaped the contours of this case. Therefore, Nawaz Sharif was apparently deprived of ‘due process of law’ guaranteed by Article 10-A of the Constitution.
The original 1973 Constitution of Pakistan only prescribed some general qualifications for the parliamentarians in the country. But later, some additional provisions were added to Articles 62 and 63, which gave rise to some exhaustive and extensive pre-conditions for qualifying to be a Member of Parliament. So first of all, a candidate has to confirm to the Islamic and national ideology of the country. Besides being a Sadiq and Ameen, he should practice obligatory duties prescribed by Islam and must abstain from major sins. Likewise, dual nationality, insolvency, previous conviction, loan-default and non-payment of utility bills can also be grounds for disqualification of individuals to contest elections in Pakistan. 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’ by disqualifying legislators on flimsy legal grounds. In fact, the narrow application of the controversial constitutional provisions through an ambiguous legal procedure has been quite disappointing and rather disastrous.
Article 62(1)(f) of the Constitution is a blanket provision. In fact, Nawaz Sharif was declared ‘dishonest’ by the apex court solely for not declaring his assets in his election nomination papers in terms of Section 12(2)(f) of the ROPA. In fact, the ROPA extensively deals with this sort of act of misdeclaration of assets, which can give rise to a number of legal penalties against the legislators; rejection of a candidate’s nomination papers by Returning Officer (Section 14(3), a declaration by Election Tribunal that election of the returned candidate is void (Section 67) or (Section 76A), punishment of imprisonment upto 3 years (Section 82). However, under this law, only a duly-constituted Election Tribunal can decide the fate of a legislator if he misdeclares his income or assets. Therefore, the recent verdict by a SC bench disqualifying Nawaz Sharif for life primarily for not disclosing his ‘un-withdrawn receivables’ appears to be unjustified and rather harsher. A punishment should always be in proportion to a crime.
As a matter of fact, there is no such thing as lifelong disqualification in Pakistan. No law in Pakistan prescribes a lifelong disqualification for individuals. Certainly, there are some perpetual disabilities to become a parliamentarian e.g. dual nationality, loan default. However, one can rectify these disabilities by abandoning his foreign nationality, or repaying his bank loan. There are a number of laws in Pakistan that prescribe imposition of disqualification penalties on individuals for a limited period; a disqualification for 10 year for corrupt practices under Section 15 of National Accountability Ordinance, a disqualification for 5 years for certain offences under clauses 1(g) and 1(h) of Article 63 of the Constitution. In fact, Section 100 of the ROPA precisely deals with the question of disqualification in case a parliamentarian misdeclares his income or assets. Under this provision, it is the discretionary power of the ECP to impose disqualification on such parliamentarian for upto 5 years. However, ECP can only impose this restriction once a parliamentarian is formally convicted by an Election Tribunal and his conviction attains finality.
It should not be ignored that a number of verdicts recently delivered by the apex court against Nawaz Sharif would have a lasting impact on the democratic process in Pakistan. These judicial verdicts will go a long way in determining the nature and pace of parliamentary politics in the country. Certainty, making the largest parliamentary party instantly dysfunctional and irrelevant will hardly do any good service to the democracy. Nor will it help initiate a genuine accountability process. They have just given rise to a number of legal and constitutional anomalies and controversies in the country.
These verdicts will also determine the mutual relationship between the two primary organs of the government- the executive and judiciary. At present, there is considerable mistrust between these two important institutions. The superior judiciary has somehow assumed the role of a purifier of politics. On the other hand, a large number of government ministers and PML-N hawks are just trying to dispute and malign the superior judiciary. This is certainty an unfortunate development. It would not be fair to hold Nawaz Sharif solely responsible for the country’s current democratic maladies. Indeed, there are a number of factors behind the sad state of political affairs in the country. Pakistan can be cured of these chronic democratic maladies through ensuring the rule of law and continuance of the democratic process. The ongoing ‘judicial purgation’ will hardly help set things right in Pakistan politically.
The writer is a lawyer and columnist based in Lahore.