The Panama verdict | Babar Sattar

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Legal eye

We now have a bench to implement the Panama verdict. It rightly comprises judges who heard the case and ruled that there is a need for further inquiry. Whether the implementation proceedings might set in motion a process that could possibly culminate in the prime minister’s disqualification in the distant future or result in the immediate declaration of disqualification by the Supreme Court rests partly on what the JIT might report but largely on how this bench reads articles 62 and 184(3) of the constitution.

The views of the judges on the said articles are recorded in their Panama opinions. After discussing a line of cases where the disqualification of parliamentarians under Articles 62 and Article 63 was established on the basis of evidence on record, Justice Ejaz Afzal Khan states unequivocally that, “we, therefore, have no hesitation to hold that a question of this nature [ie disqualification] in the absence of undisputed evidence cannot be decided by this court in exercise of its jurisdiction under Article 184(3) of the constitution”.

While holding that an offence against the PM could possibly be made out under sections 9(a)(v) and 15 of the NAB Ordinance, he rules that the apex court can’t “lift Sections 9 and 15 of the [NAB] Ordinance, graft them onto Article 63 of the constitution, construe them disqualifications and proceed to declare that the member of parliament so proceeded against is not honest and amen and as such is liable to be disqualified. A verdict of this nature would not only be unjust but coram non judice for want of jurisdiction and lawful authority.

“If a person is sought to be proceeded against under Section 9(a)(v) and 15 of the NAB Ordinance resort could be had to the mode, mechanism and machinery provided thereunder. Let the law, the Investigation Agency and the accountability court and other courts in the hierarchy take their own course. Let Respondent No 1 (the PM) go through all the phases of investigation, trial and appeal. We would not leap over such phases in gross violation of Article 25 of the constitution which is the heart and the soul of the rule of law”.

Justice Khan, in short, rules out the possibility of the SC issuing a disqualification declaration under Article 62 in exercise of its Article 184(3) powers. In view of his opinion, an incriminating JIT report could, at most, result in a direction to NAB to consider filing a reference against the PM in an accountability court.

Justice Sh Azmat Saeed also states in his opinion that “it is a legal impossibility to disqualify a person merely upon allegations. Though, such allegations may be sufficient for [the] initiation of criminal proceedings under the NAB Ordinance. To disqualify a person in such an eventuality would require turning our entire legal system on its head and would constitute an act of jurisprudential heresy”.

Justice Saeed clarifies that, “the term ‘honest’ as employed in Article 62(1)(f) refers to legal honesty, an objective concept and not mere moral or ethical honesty, which is subjective. The courts have never wandered into the realm of morality, in this behalf”. Explaining the limits of the SC’s powers, he holds that, “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 arrogate unto itself the power to vet candidates on moral grounds…”

Justice Saeed rules out the possibility of the PM being disqualified for being held vicariously liable for the actions of his children, even if found dishonest. But he leaves a small window open for the PM’s disqualification by the SC by holding that, “ordinarily this court in exercise of its jurisdiction under Article 184(3) tends to avoid deciding the disputed questions of facts. However, this is not an absolute rule. In exceptional circumstances, this court on more than one occasion has undertaken such an exercise”. And that: “this court will examine the matter of disqualification of Respondent No 1 (PM) on the basis of (JIT) Reports…”

Justice Ijaz-ul-Ahsan holds that the conviction of a public officeholder for the ownership or possession of assets disproportionate to his known sources of income “can only be recorded by an accountability court under [the] NAO, after a proper trial, recording evidence and granting due process rights guaranteed by the constitution to the accused. To transplant the powers of the accountability court and to attach such powers to the jurisdiction of this court under Article 184(3)” cannot be done “without stretching the letter of the law and the scheme of the constitution”.

That “such course of action would be violative of the principles enshrined in Articles 4 and 25 of the constitution, which guarantee to every citizen the right to be dealt with in accordance with law, equality before law and entitlement to equal protection of law. Adopting any other mode would set a bad precedent and amount to a constitutional court following an unconstitutional course. This we are not willing to do…”

But Justice Ijaz-ul-Ahsan too leaves room for issuing a declaration of disqualification by holding that power under Article 184(3) “can be exercised only when there are admitted facts and/or irrefutable direct evidence available on record to justify disqualification…If such facts/evidence are/is placed before this court, appropriate orders including orders for disqualification can be passed in exercise of powers under Article 184(3) read with Article 187 of the constitution”.

Here is the bottom line: unless the JIT can produce irrefutable direct evidence, admissible in accordance with the Qanun-e-Shahadat Order, to establish that Nawaz Sharif is the beneficial owner of the London properties (and/or other undeclared assets outside Pakistan) as opposed to his children, we shouldn’t hold our breaths for the issuance of a declaration of disqualification by the SC.

The Sharifs are unlikely to open their hearts to the JIT and come clean. The JIT is vested with no authority to force authorities and/or individuals in foreign jurisdictions – such as Saudi Arabia, the UAE, Qatar and London – to share records related to Sharif family assets. So even a JIT comprising the most incorruptible and competent folks might be unable to compile evidence, resulting in anything more than a direction to NAB to consider an accountability reference.

But the Panama case and the judges’ opinions have flagged certain issues for the SC to consider.

One, can and should public opinion and pressure, brought to bear upon courts through the media (traditional and social), be allowed to influence judicial consciousness? Isn’t the very rationale of an unrepresentative judicial branch (and the use of doctrine of sub judice and the contempt law) to ensure that popular sentiments must have no influence on judicial outcomes?

Two, what is the jurisdictional scope of Article 184(3)? If five judges sitting on a bench are poles apart on what power the SC is endowed with under the said article, doesn’t the exercise of Article 184(3) power necessarily rest on the whims or subjective preferences of individual judges seized of a matter? Isn’t it time for the SC to constitute a larger bench and add certainty to the scope of Article 184(3)?

Three, what functional purpose does Article 184(3) serve? Can it be employed as a tool to substitute dysfunctional state institutions? Did its incessant use by Iftikhar Chaudhry’s court make lasting contributions to our governance system? Must the pendulum swing from populism to apathy and back or can we also opt for meaningful judicial reform as an alternative?

We are a shortcut society driven by momentary desires and guided by partisanship, populism and self-righteous conceit. We don’t need the judiciary to egg us on or tag along out of fear of being judged by a howling crowd. Justice Ejaz Afzal Khan rightly cautions in his Panama opinion that, “the solution lies not in bypassing but in activating institutions…political excitement, political adventure or even popular sentiments, real or contrived, may drive any or many to an aberrant course but we have to go by the law and the book”.