ISLAMABAD: Thursday’s hearing of a disqualification case against the top Pakistan Tehreek-i-Insaf leadership suggested that the Supreme Court intended to find out the true meaning of words like dishonesty, sadiq or ameen mentioned in Article 62(1)(f) of the Constitution — same provision under which Nawaz Sharif was disqualified as prime minister in the Panama Papers case.
This became evident when Chief Justice Mian Saqib Nisar inquired from Advocate Sikandar Bashir Mohmand, representing PTI secretary general Jahangir Khan Tareen, whether vices like cheating or committing fraud, deceit or depriving someone of his due right, fell under the definition of dishonesty and whether honesty was hermetically linked with corruption committed by a public office-holder.
“Both parties will have to assist the court in finding what is the purpose and true spirit behind Article 62(1)(f),” the chief justice said, asking would a lie by a father to his son to inform someone who called him that papa was not home fall under the definition of dishonesty.
The counsel argued that the court had to go into the intent or mens rea of an individual to understand whether dishonesty had been committed and said the court was doing a deeper analysis now when in the past it disqualified people by relying on dictionary meanings instead of defining what the dishonesty was.
CJP warns against commenting on judges’ character
On Thursday, the Supreme Court also asked the attorney general to assist it on a challenge thrown by the counsel that Sections 15-A and 15-B of the Security Exchange Ordinance 1969 dealing with the concept of insider trading — an allegation levelled against Mr Tareen by the petitioner — were inserted by a simple majority in the National Assembly bypassing the Senate and, therefore, did not contain the provisions needed to become a money bill as enunciated under Article 73 of the Constitution. It was, therefore, a bad law, the counsel argued.
Before postponing the proceedings, a three-judge SC bench decided to commence the hearing on a fresh application filed by PTI chief Imran Khan who explained certain money transactions and on which Advocate Mohammad Akram Sheikh, the counsel for petitioner Hanif Abbasi, has to furnish a rejoinder.
On Thursday, Chief Justice Saqib Nisar also asked all and sundry to repose trust in institutions like the judiciary and said that though judgements were open to criticism, it should be done in a fair manner without commenting on the character of the judges.
He observed that like parliamentarians who should not be ridiculed because parliament is an honourable institution, other institutions such as the judiciary and judges should also be extended the same respect and honour. Many things that appeared on the media had the potential to prejudice the hearing before the court and, therefore, unfair comments and analysis should be avoided, the chief justice said.
“There are many things between the judges and the counsel pleading the case before the bench which can be comprehended only by them,” the chief justice observed, adding that he had received many messages on WhatsApp that his reputation was being compromised or at stake, but “we always keep the interest of the country and that of the Supreme Court ahead of everything than reacting in an emotional manner”.
Referring to the concept of insider trading, the court said it had to look into the case within the limits of “our own law because every country has its own rules. We are hearing each petition with no boundaries. Each day, new questions arise and come before us”.
On Article 62(1)(f) of the Constitution, the court also inquired whether the words like profligate, sagacious, honest and ameen used in the provision should be read conjunctively.
These were pertinent questions, Mr Tareen’s counsel said, adding that what the court had done so far on the issue of corruption was that it had created a presumption that without a declaration by a court of law, “we were all honest and ameen”.
If a person contested election and did not declare something then “we have to go into the matter of mens rea”, the counsel said, adding that these were all obscure issues and very difficult to answer. If there was irrefutable proof or document against someone then it was close to the meaning of dishonesty, he argued.
The court observed that the matter related to integrity which had a number of meanings. “If we are attempting to disqualify a member of parliament over lack of integrity, we first have to ascertain what integrity means.”
The court also asked whether integrity had anything to do with corruption, or with those who held public office. “We will have to be attentive to such questions.”
The bench also regretted different meanings being attributed to the court like too much time was being consumed by it in this case, but explained that these were inquisitorial proceedings and every day “we come across new things. We are judging something new”.
Published in Dawn, October 20th, 2017