Case in Point: Justice seen to be done?

Justice Robert Jackson of US Supreme Court had famously stated that, “we are not final because we are infallible, but we are infallible only because we are final.” Our Supreme Court’s decision in the Panama case reaffirms the wisdom in Justice Jackson’s words. The decision that ousted an elected PM without trial and sounded the death knell of his parliamentary career will be remembered mostly for the infirmity of its legal reasoning, for questions it raises about the integrity of the process leading to the verdict and for skewing our institutional balance of power.

Our SC unfortunately doesn’t have an illustrious history when it comes to standing up for democracy and constitutionalism and or exhibiting allegiance to the scheme of institutional checks and balances when that requires the practice of judicial restraint. Its disregard for judicial precedent while interpreting the law in a manner that has created legal uncertainty, expanded the SC’s authority at the expense of the executive and legislature and created partisan consequences in a decision that seems obviously populist will not embellish its credentials.

The Panama matter had two main aspects: the culpability of Nawaz Sharif and the process through which such determination was to be made. This second aspect, related to the discretionary jurisdiction of the SC under Article 184(3), was of jurisprudential interest as its determination would impinge on the right to fair trial and due process, legal certainty regarding eligibility for elected office, and the larger constitutional design that prescribes trichotomy of power and identifies the executive, parliament and judiciary as co-equal pillars of the state.

In August 2016, the Registrar Supreme Court had initially returned the petitions that ultimately led to Sharif’s disqualification after denouncing them as frivolous. A month later, CJP Justice Jamali declared that office objections to maintainability of the petitions were ill founded. For those who understand the functioning of the SC, that the registrar would pass a detailed order rejecting such politically sensitive petitions without the blessing of the CJ is as probable as the veracity of the Qatari money trail presented by the Sharifs before the SC.

One continues to hear that the SC didn’t rule on the maintainability of petitions as a preliminary matter because NS voluntarily submitted to the SC’s jurisdiction. It is settled law that consent of parties can’t confer legal authority on a court. It is truly remarkable that in a matter as significant as the highest court throwing out the head of the executive and the leader of National Assembly while acting as a court of first instance, there is no convincing reasoning to explain why the SC departed from precedent and elected to exercise its 184(3) powers as it did.

Much has been said about the reversal of burden of proof in the Panama matter. In a matter entitled Ghani-ur-Rehman (PLD 2011 SC 1144), Justice Khosa writing for the SC laid down two principles. One, to prove commission of an offence under Section 9(a)(v) of the NAB Ordinance, the prosecution must establish the known sources of income of the accused and that he holds property disproportionate to such sources. And two, the prosecution must produce evidence to establish the nexus between misuse of authority and accumulation of assets by the accused.

In the Panama case, neither the petitioners nor the JIT produced any material to establish that Nawaz Sharif and not his children owned the London flats. Further, no material was ever produced to connect misuse of authority by NS as a public officeholder with accumulation of wealth beyond known means. While the observations of judges during the proceedings strengthened the narrative that NS was liable for possessing assets beyond means, it never applied the two-pronged Ghani-ur-Rehman test before ordering a NAB reference against NS.

In Ishaq Khan Khakwani (PLD 2015 SC 275) while dismissing the appeal seeking PM’s disqualification, Justice Khosa added an additional note reiterating (a view he had first expressed in a law journal three decades back) that many provisions of Article 62 were not amenable to legally enforceable standards. Referring to Article 62(1)(f) he opined that, “it is proverbial that Devil himself knoweth not the intention of man. So, why to have such requirements in the law, nay, the constitution, which cannot even be defined, not to talk of proof”.

In Rana Aftab Ahmad Khan (PLD 2010 SC 1066) the SC held that, “declaration, determination and adjudication of a person falling within the mischief of Art 62(1)(f) of the constitution in appropriate cases could also be possible through the medium of Returning Officer or appeal arising therefrom but it could not be done straight away in constitutional jurisdiction, when there was a factual controversy involved”. How can a declaration that a person is no longer sadiq (quintessentially a factual determination) be made without a trial or recording evidence?

In Muhammad Siddique Baloch (PLD 2016 SC 97) the SC, relying on two pillar judgments (PLD 1957 SC 91 and PLD 1973 SC 160) in relation to Article 62, held that “finding of disqualification must be based on positive evidence and should not be rendered inferentially on mere surmises; that since a disqualification was penal in nature, therefore, the terms thereof were subject to strict interpretation; and the benefit of doubt was to be extended in favor of a returned candidate.” How then does the SC’s 62(1)(f) declaration in Panama square with past precedent?

Notwithstanding the immediate impact of the verdict on NS, the PML-N or Election 2018, the legal questions raised by the Panama judgment are more consequential for our polity. Is the new test for disqualification of elected public officeholders compatible with the need for political stability? Does our court system value Article 10-A and the right to due process? Are judges impervious to the vain need for popularity and flattering media coverage or are they influenced by public opinion? Has the SC usurped the authority of the executive and the legislature?

The Panama verdict lays out two tests for disqualification. One is the subjective test articulated by Justice Khosa: that the SC has the authority to take cognizance of statements of elected representatives under Article 184(3), and if judges form a subjective view that a representative might not have spoken the whole truth, an Article 62 declaration can be issued without trial. Justice Ejaz Afzal Khan has scripted a bright line test: any error/omission in election forms, notwithstanding its materiality or absence of mens rea, will result in an Article 62 declaration.

Not only is the reasoning in the Panama verdict frail, the process of arriving at it is unsettling as well. One, the JIT’s constitution was marred by controversy. There is no logical explanation for why the MI and the ISI were afforded representation. But what was most disturbing was the Whatsapp saga. On whose instruction was the Registrar SC picking JIT members and making calls to the SECP and the State Bank on the SC’s behalf at a time when the Panama implementation bench hadn’t even been constituted? (The chairman SECP, the Whatsapp whistle-blower, incidentally landed behind bars.)

And two, for the first time in history, two judges disclosed their minds and gave final verdicts at an interlocutory stage and the remaining ordered an interim investigation. If the CJP had created an implementation bench that had no overlap with the Panama bench, would the 3-vs-5-member bench controversy arise? Did the judges write lengthy interlocutory orders on April 20 but forgot to say so? Why didn’t all five convene to consider the JIT report, disclosure related to Capital FZE which led to the ultimate ‘unanimous’ decision? Is there any judicial precedent where a case is part heard by only half the bench?

The Panama verdict and its consequences are now a reality. As partisan interest in this judgment whittles down, there is need to subject it to dispassionate legal scrutiny. The ouster of NS from politics will not grievously hurt this country. But erosion of faith in the judge as an impartial guardian of rule of law will.

Email: sattar@post.harvard.edu

The writer is a lawyer based in Islamabad.