Political or partisan?

25 Dec 2017

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IS there a contradiction or conflict between the two separate Supreme Court judgements, one holding Nawaz Sharif as dishonest, the other holding Imran Khan as not dishonest? This leads to the larger question of whether by disqualifying parliamentarians, the Supreme Court has become political, anti-democratic and partisan.

Judicialisation of honesty: “States which are not governed by honest and upright people are bound to suffer and lag behind the developed nations of the world”, is how the chief justice of Pakistan, in the Jahangir Khan Tareen verdict, emphasises the constitutional importance of such disqualification cases based on allegations of dishonesty. But since the Supreme Court also holds in the same judgement that the “sanctity of … parliamentarians should not be allowed to be impinged or compromised lightly”, criteria are laid down, in the Imran Khan and Jahangir Khan Tareen cases, for judging dishonesty and judging the defences of parliamentarians against allegations of dishonesty and the exceptional circumstances in which such disqualification cases will be entertained directly by the Supreme Court.

Firstly, the Supreme Court categorically lays down the “element of dishonesty as an essential element” for any disqualification under Article 62(1)(f) of the Constitution. Therefore, it is a misconception that there will be large-scale disqualifications on mere incorrect declarations or omissions without deliberate dishonest design. Furthermore, the Supreme Court has rather creatively interpreted the Nawaz Sharif Panama case judgement as also laying down the same criterion of dishonest conduct for disqualifications and no disqualifications on mere incorrect declarations or omissions.

Even if the courts exercise judicial restraint, some political elites will still win or lose.

Secondly, the parliamentarians against whom allegations of dishonesty are made have to only present a “prima facie, arguable defence” about disclosure of assets, and “arithmetical accuracy in reconciling amounts and events is not required”, and “as long as the court is satisfied that the account is not patchy, inconsistent or unreliable”, the burden would have been discharged by the accused parliamentarian. Therefore, the defence for parliamentarians required in such disqualification cases has been substantially lowered by the Supreme Court.

Thirdly, “we have expended time and efforts in our original jurisdiction for the sake of public interest in the circumstances of the public outcry against corruption that arose as a result of the Panama Papers’ leaks”, the Supreme Court notes, otherwise the appropriate forums are either the election tribunals or the high courts for such disqualification cases. Therefore, the Supreme Court may not directly entertain other disqualification cases except in exceptional circumstances, and so it dispels the misconception about large-scale disqualifications.

Judicial conclusions: On the basis of the above-mentioned criteria, the following conclusions are reached in the Imran Khan and Jahangir Khan Tareen cases. Firstly, Imran Khan is declared to be not dishonest because the explanations given, and evidence produced by him, was reasonable (eg M/S. Niazi Services Ltd was not an asset and its disclosure was inconsequential etc) and omissions were not dishonest.

Secondly, Jahangir Tareen is declared to be dishonest because his non-disclosure of his property/ asset, ie Hyde House, through an offshore company SVL was a “blatant and shocking untrue statement” in his nomination papers and also “blatant misstatement” before the Supreme Court. Therefore, parliamentarians beware — deliberate non-disclosure of even a single asset, without even corruption or money-laundering allegations, can lead to disqualifications. This, indeed, is quite a problematic and stringent criterion.

The Nawaz non-comparison: In a creatively brilliant analysis, the chief justice in the judgement in the Imran Khan case rescues the weak reasoning of the later majority judgements of July 28 and Sept 15 by explaining why the two verdicts do not apply to the Imran Khan case.

Firstly, ‘facts vastly’ differ, or the ‘context’ or ‘evidentiary context’ is completely different from the Imran Khan case. This evidentiary context is brilliantly described in paragraphs 85 to 89 by Justice Ijaz Ul Ahsan in the Panama case judgement.

Secondly, “robust allegations of corruption” and finding “sufficient evidence for directly launching a prosecution” initiating NAB cases is the “evidentiary context”, which led to the specific findings about Capital FZE and the undisclosed salary, as the company’s “financial dealing were already doubted”.

Thirdly, it follows that in view of this evidentiary context, “robust allegations of corruption” lead to dishonesty being attributed to Nawaz Sharif as opposed to mere omissions or inconsequential gaps not leading to attributing dishonesty to Imran Khan.

Political, not partisan: The Constitution is an inherently political document, which defines and distributes political power of all state and political elites, lays out the details of the democratic framework and gives politically laden fundamental rights to citizens. Crucially though, it hands over the monopoly of interpretation of its provisions to the judiciary as the final arbitrator of this inherently political Constitution. Therefore, when the courts decide on the interpretation and application of politically laden disqualification criteria, such cases are bound to have political winners and losers; even if the courts decide to exercise judicial restraint by not doing anything, some political elites will still win or lose. In short, the hard distinction between law and politics is artificial.

More importantly, like any developing country, a messy democratic transition is taking place in Pakistan, with a powerful but insecure army, divided political elites, a vulnerable judiciary, a weak state and a restless citizenry. Comparative history tells us that in such democratic transitions, it is usually the judiciary which adjudicates on intra-state political conflicts between the army and the political elites as well as on inter-political elite conflicts.

The choice is very stark — if not the judiciary then the army or the street mob will resolve these political questions. Therefore, the courts are

political because while interpreting an inherently political Constitution in resolving intra-state and inter-political elite conflict, they uphold certain politico-constitutional values, and this has political consequences.

So, the real choice is not between a political and non-political judiciary but between a political though non-partisan judiciary and a politically partisan judiciary. The Supreme Court judgements in favour of the PML-N eg Hudaibya case, the Jahangir Tareen disqualification case and the Orange Line Metro Train case should at least indicate that this judiciary is both relatively independent and non-partisan.

The writer is a lawyer.

Published in Dawn, December 25th, 2017