The disqualification debate

2017-12-20T23:27:24+05:00 Mohsin Raza Malik

The Supreme Court of Pakistan has shown another parliamentarian the door after former Prime Minister Nawaz Sharif in less than five months. Last week, a three-member bench of the apex court, head by CJP, disqualified PTI Secretary General Jahangir Tareen from being a member of National Assembly for not declaring his assets in his election nomination papers after formally declaring that he was not ‘honest’ in terms of Article 62(1)(f) of the Constitution read with Section 99(1)(f) of the ROPA. This bench was hearing a tit-for-tat constitutional petition under Article 184(3) filed by a PML-N leader Hanif Abbasi against PTI Chairman Imran khan and Jahangir Tareen. Luckily, Imran Khan managed to get clean chit from the apex court in this case. Now, both the petitioner and respondent have also hinted at filling review petitions against this decision in the apex court.

At present, the apex court’s jurisdiction under Article 184(3) to disqualify parliamentarians has become the most crucial and rather a contentious issue in Pakistan, which essentially involves the future of political parties, the credibility of the superior judiciary, and the relationship among the primary organs of the government i.e. the executive, the legislature, and the judiciary. Now a number of politicos also look desirous of getting their opponents disqualified through this novel constitutional procedure. Therefore, the sword of disqualification is currently hanging over many parliamentarians’ heads. On the other hand, PML-N leaders are trying to dispute the integrity and impartiality of the superior judiciary after accusing it of having “double standards”. Weary of similar criticism, Chief Justice of Pakistan recently made it clear that the judiciary was absolutely independent and ‘not part of any plan or design’.

It was during the chief justiceship of Iftikhar Muhammad Chaudhry that the apex court started disqualifying legislators while exercising its jurisdiction under Article 184(3) of the Constitution. Noticeably, now the superior courts have just expanded the scope of this controversial constitutional procedure by disqualifying parliamentarians for not being ‘Sadiq and Ameen’ in terms of Article 62(1)(f). In fact, by incorporating Article 184(3) in the Constitution, the framers of the Constitution tried to empower the apex court to effectively safeguard the fundamental rights of the citizens. The jurisdiction of the apex court under Article 184(3) is essentially co-extensive with that of a provincial High Court under Article 199(1)(c), which empowers a High Court judge to “to make an order giving directions to any individual, or authority, or the Government for the enforcement of fundamental rights enshrined in the Constitution”. Therefore, one wonders how the apex court can disqualify a legislator through a declaration after conducting adversarial proceedings under Article 184(3). The question of maintainability of these proceedings is really a crucial one. But regrettably, this very question has neither been seriously raised by any party nor adequately answered by the superior courts so far.

Based on the principle of ‘Trias Politica’, the doctrine of Separation of Powers essentially maintains that all three branches of the government- the executive, the legislature and the judiciary- should wield their powers separately and independent of each other. Like many other countries, this principle of trichotomy of powers also occupies a pivotal position in the constitutional jurisprudence in Pakistan. The Constitution has exhaustively elaborated the powers and functions of each organ of the government. Therefore, each organ is supposed to manoeuvre within its constitutional domain. Under the Constitution, Supreme Judicial Council is the regulatory body for the superior judiciary. No judge of the superior judiciary can be removed from office by anyone other than SJC after adopting a formal procedure provided under Article 209. Similarly, 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. Moreover, the 1976 Representation of People Act (ROPA) throws light on various aspects of public representation in Pakistan. Therefore, the apex court should abstain from deciding the crucial question of parliamentarians’ disqualification under Iftikhar Chaudhry Doctrine by assuming the role of ECP.

The so-called Income and Assets Declaration (IAD) system, which is also a universally-recognized anti-corruption tool, requires individuals to formally and precisely declare their income and assets before an appropriate legal agency of the state. 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. Similarly, under Section 42A of the Act, an elected member of the parliament is also legally bound to submit a similar statement of assets and liabilities every year to the ECP. Thus Pakistan also theoretically adheres to the so-called IAD system as far as the legislators are concerned. 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. A parliamentarian must be disqualified on some serious grounds of corruption and misconduct after a due process of law.

Both Nawaz Sharif and Jahangir Tareen were declared ‘dishonest’ by the apex court solely for not declaring their assets in their 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). Therefore, under the law of the land, only a duly-constituted Election Tribunal can decide the fate of a legislator if he misdeclares his income or assets.

At the moment, there is considerable confusion as to the length of period for which a parliamentarian, who is disqualified by the apex court, remains disqualified or legally ineligible to contest election. The judgments in both Nawaz Sharif and Jahangir Tareen cases are silent on this point. Therefore, there are views that both parliamentarians have been disqualified for life. Last week, some leading national English newspapers misreported that Jahangir Tareen has been declared disqualified for life by the apex court. 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 was hoped that the Panamagate case would go a long way in establishing the rule of law and introducing a culture of accountability in Pakistan. However, so far, this case has only given rise to a number of legal complexities and controversies. Consequently, there is political uncertainty and turmoil in the country. At the same time, this case has also resulted in politicizing the superior judiciary after disputing its impartiality and credibility. Therefore, the apex court should exercise maximum care and caution while exercising its constitutional jurisdiction under Article 184(3). Being the highest constitutional court, it should act as a neutral arbiter rather than assuming the responsibility of a regulatory body like the ECP.

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The writer is a lawyer and columnist based in Lahore.

mohsinraza.malik@ymail.com

@MohsinRazaMalik

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