A-moral judgment?
The honourable Supreme Court of Pakistan, on Friday, disqualified Mian Nawaz Sharif, from being member of the National Assembly, under Article 62(1)(f) of the Constitution. Also, the honourable Court has decided that NAB references be filed against the former Prime Minister, and his family members, based on material presented before the JIT and the honourable Court itself. And, for the sake of ensuring implementation of this judgment, the honourable five-member bench has also requested the honourable Chief Justice of Pakistan to “nominate an Hon’ble Judge of this Court to supervise and monitor implementation of this judgment in letter and spirit and oversee the proceedings conducted by NAB and the Accountability Court.”
Also, perhaps most importantly, the honourable Court has observed that the Hudabiya Paper Mills appeal, which “as has been undertaken by Special Prosecutor NAB” shall be filed before the honourable Supreme Court, will be “dealt with by this Court”.
In the aftermath of this judgment, as had been expected, one segment of our polity and public has taken to ferociously criticise the judgment, while others are celebrating the verdict.
Those criticising the honourable Court’s judgment primarily base their arguments on five grounds: 1) partisan proclivity; 2) that disqualification could only have resulted after a proper trial; 3) that the judgment should have been on ‘Panama’, and instead it focuses on ‘iqama’; 4) a suggestion that the honourable Court was acting on the directions of ‘someone else’; and 5) that the honourable Court has opened uncontrollable (moral) floodgates by invoking the ‘sadiq and ameen’ clause of Article 62(1)(f).
In order to review and critically analyse some of these issues, let us first start with recognising that Friday’s judgment of the honourable Court consists of two separate and distinct parts. First, an 18-page note, authored by Justice Ejaz Afzal Khan, written on behalf of the three honourable judges (members of the implementation bench) who had not rendered their final judgment on April 20, 2017. And the second, a 6-page note, signed by all five members of the bench, which constitutes the “Final Order of the Court”. And this last part, the Final Order of the Court, is the operative portion of the honourable Court’s judgment, primarily consists of directions issued in the unanimous judgment of Justice Ejaz Afzal, Justice Sheikh Azmat Saeed, and Justice Ijaz-ul-Ahsan.
Importantly, Justice Asif Saeed Khosa and Justice Gulzar Ahmed, who had already rendered their final judgment, have authored no new judgment. In fidelity with constitutional principles, they have merely signed the order of the Court, standing by their earlier detailed judgment.
While on the point, it is also important to clarify that this judgment of the honourable Court is not a separate and distinct order, disconnected with the earlier judgment dated April 20, 2017. In fact, the very opening lines of the Justice Ejaz Afzal’s note declares that “this judgment is in continuation of our judgments dated 20.04.2017 in Constitution Petitions No. 29, 30 of 2016 and Constitution Petition No. 03 of 2017”. As such, this judgment must be read as the last 25 pages of the earlier order. Consequently, the observations made in the April 20, 2017 judgment – in regards to Qatari letter, Prime Minister’s speeches, reverse-accounting spreadsheets, etc – still hold field.
A reading of the honourable Court’s judgment in this holistic manner reveals that all five members of the honourable bench agree on the conclusion of disqualifying Mian Nawaz Sharif, but not necessarily for the same reasons and rationale. For those who are unfamiliar with judicial orders and workings, this is not an uncommon position. Frequently, honourable judges of the superior Courts can agree on the conclusion of a pending lis, but for vastly different reasons. And a prime example of this is the recent judgment of the honourable Court, which upheld the validity of the 18th and 21st Constitutional Amendments. In the said case, even though a majority/plurality of the honourable judges upheld the concerned Constitutional Amendments, they did so for very different reasons, warranting most judges to write their individual opinions and reasons for it. And, of course, there are many other examples of this throughout the jurisprudential history of Pakistan (and other countries).
Now more to the merit of the judgment itself. Justice Khosa and Justice Gulzar’s judgments, rendered before the ‘new’ material, unearthed during the JIT process, had been placed on the record. As such, they argued that (ignoring the material placed on record by the Petitioners) there were enough contradictions within the defence raised by Sharif family to merit disqualification. Specifically, Justice Khosa had observed that the PM “economised with the truth”, provided ““no details of any bank account, any banking transaction or any money trail”, instead presented the Qatari letter as “nothing but an afterthought” with “absolutely nothing” on the record to substantiate the same. This “unbelievable” story of “oscillating and vacillating explanations”, Justice Khosa concluded, had no “credibility”, and made one “wonder where truth and honesty stand in the list of priorities of [the PM]”, thus meriting disqualification under Article 62 and 63 of the Constitution.
The remaining three honourable judges, agree with the conclusion arrived at by Justice Khosa and Justice Gulzar – that of disqualifying Mr Nawaz Sharif – but on far narrower grounds. Specifically, these honourable judges applied Article 62 and 63 in the narrowest possible manner (so as not to open the floodgates of ‘morality’, under the ‘sadiq and ameen’ clause), and concluded that 62(1)(f) disqualification is attracted against someone who lies on “solemn” oath. And for this purpose, instead of focusing on Prime Minister’s speeches, his statement before the JIT, or even submissions before the honourable Supreme Court, this majority of the bench concludes “that having failed to disclose his un-withdrawn receivables constituting assets from Capital FZE Jebel Ali, UAE in his nomination papers filed for the General Elections held in 2013” as required by the Representation of the People Act, 1976 (ROPA), “and having furnished a false declaration under solemn affirmation” Mr. Muhammad Nawaz Sharif is “not honest in terms of Section 99(f) of ROPA and Article 62(1)(f) of the Constitution”, and thus “he is disqualified to be a Member of the Majlis-e-Shoora (Parliament).”
Surprisingly, this interpretation of the (majority of the) honourable Court has attracted unwarranted criticism from countless quarters, including several eminent members of the legal fraternity. The question needs to be asked: has the honourable Court rendered its judgment on moral basis? Did it transform itself into a court of morality, as some people seem to be arguing? Or has it, instead, (wisely) strayed away from all moral connotation, even while interpreting and applying a very controversial provision of the Constitution?
While on the point, there is no cavil with the fact that Article 62(1)(f) – introduced by a dictator – should be repealed/amended, because it holds the possibility of becoming a tool for moral witch-hunts. But that is a choice to be made by the legislature. Till such time that the provision exists in the Constitution, can the courts simply ignore it? Can a provision of the Constitution be rendered redundant? And if not, has the honourable Court not applied it in the most amoral manner, and through a justiciable standard (that of ‘lying under oath’)?
We should not argue for the honourable Court dismissing elected Prime Ministers. And our democracy should openly debate such issues. But in this case, let us place the blame where it belongs: It is the legislature, and not the judiciary, which has consistently chosen to keep Artile 62(1)(f) in our Constitution, despite having had at least 13 different opportunities to amend it. In fact, when the 18th Constitutional Amendment was being drafted, a suggestion had been made by PPP that Article 62 and 63 should be amended; and this suggestion was most vociferously opposed by none other than PML(N).
These are challenging times for our polity, as well as the judiciary. And for democracy to prosper, both these ‘institutions’ must grow strong. In defending Nawaz Sharif, let us not weaken the institutions of democracy. Instead, let us start the much-needed debate of amending our Constitution so as to expunge the footprint of Zia-ul-Haq from it.
The writer is a lawyer based in Lahore. He
has a Masters in Constitutional Law from Harvard Law School.
saad@post.harvard.edu
@PakSword @QatariPrince @Realistic Change @Zibago @The Accountant
