BEYOND the instinctual demand for review or celebration and the search for conspiracies or judicial superiority, there is little discussion on why the Supreme Court in its July 28 judgement took such a strict view of electoral disqualification and accountability.
What and how questions: First, in the beginning on April 20, there were five separate detailed judgements including two dissenting notes and an ‘order of the court’ based on the majority view of the three judges who deferred verdict on the issue of disqualification and NAB proceedings. In the end on July 28, there was another short judgement signed by the same three judges deciding the entire case but immediately followed by a ‘final order of the court’ signed by all five judges endorsing the July 28 judgement of the majority view taken by three judges. In total, there are six judgements, and two orders.
Secondly, before and on April 20, there were five judges who heard and decided the case, then after April 20 and till July 21, three judges heard the same case, and on July 28, the three majority judges announced their judgement, and minutes thereafter, five judges announced the ‘final order of the court’. The judgement and ‘final order of the court’ dated July 28 do not explain in detail the relationship between the April 20 and July 28 judgements. In other words, was the April 20 judgement an interim order or part of the final judgement? Why was there no hearing before all five judges, before the ‘final order of the court’ was announced? This was an unusual and confusing process, to say the least.
Thirdly, in relation to NAB proceedings, the judgement dated July 28 is less about reasons and more about conclusions. This is based on the assumption that the reasons had already been given in the April 20 judgement. Also, without any detailed examination of the JIT report, it was concluded that a prima facie case was made out against the prime minister and his family. Thereafter, the following instructions were given — NAB was directed to file multiple cases/references against Nawaz Sharif and his family members and the accountability court was to decide these references within six months. No detailed reasons were given in the July 28 judgement for these directions — except that there was a prima facie case and by referring to the reasons given in the April 20 judgement.
Can this judgement be followed in other cases of disqualification?
Fourthly, the prime minister’s disqualification is solely based on his failure to disclose his un-withdrawn receivables constituting assets from Capital FZE, UAE, in his nomination papers filed for the 2013 elections. The reasoning behind this critical issue comprised less than two pages and it was not expressly examined as to why the disqualification was based solely on this mis-declaration.
Fifthly, an implementation bench was constituted to monitor the implementation of the July 28 judgement as well as to ‘oversee’ the proceedings by NAB and the accountability courts. The reason and nature of this ‘oversee’ function was not explained.
Unstated reasons: Firstly, unlike the two dissenting judges, the three majority judges in their April 20 judgement took the strict jurisprudential position that disqualification could only occur on the basis of an ‘admitted fact’ or ‘irrefutable evidence’. After holding that un-withdrawn receivables constituted assets, this was the only basis on which Nawaz Sharif could be disqualified as all other findings of the JIT were at best strong allegations. Therefore, the three majority judges became prisoners of their own jurisprudential logic.
Secondly, to rely on any other allegation of the JIT report for disqualification would have led to the criticism that they had prejudged the criminal trial against the accused. This is also the reason why there is no detailed examination of the allegations the JIT report contains.
Thirdly, in such high-stakes political cases, there is a tendency to achieve unanimity and consensus. Considering that both Justice Ejaz Afzal and Justice Azmat Saeed had taken such a strict view on disqualification, the only way to achieve unanimity and consensus was to base the disqualification on minimum criteria on which everyone agreed. The need for judicial consensus led to this strictly technical disqualification.
Fourthly, nearly all five judges in the April 20 judgement gave their findings on how all investigation agencies have been captured by political elites and how even the courts including the Lahore High Court had previously passed questionable judgements acquitting Nawaz Sharif in corruption-related matters. Thus they saw no option but to monitor the process under NAB and accountability courts for the limited purpose of concluding these trials. Nothing problematic about this as there is judicial precedent for this.
Fifthly, under Section 16 of the NAB law, the trial has to be concluded in 30 days. So, there was nothing unusual about directing that the trial be concluded in six months.
Problematic: The Supreme Court judgement points towards some serious issues. Firstly, doesn’t the procedural confusion regarding multiple judgements and different benches clearly indicate the absence of procedure regulating Article 184(3) proceedings ie a legal minefield? The procedure adopted by the court in such critical cases is surprisingly not known in advance.
Secondly, what is the precedent value of the disqualification on such narrow technical grounds? Can this judgement be followed in other cases of disqualification? This is unlikely as it may lead to constant political instability. Thirdly, it is the July 28 judgement, which disqualifies Nawaz Sharif and initiates NAB proceedings and not the April 20 majority judgement. But the July 28 verdict begins by stating that “this judgement is in continuation of our judgement dated 20.04.2017”, which provides an excuse for not giving independent, or giving only brief, reasons, in the July 28 judgement, for new and far-reaching conclusions, without really examining how the April 20 majority judgement can now form a part of the final verdict.
Sadly, these final judicial proceedings have marred the otherwise historic effort of the Supreme Court for political accountability.
The writer is a lawyer.
Published in Dawn, August 8th, 2017