A case of forgetfulness

Like the Supreme Court verdict in the Panama case, the decision given in the disqualification case of Imran Khan and Jahangir Tareen has come under severe criticism by legal and constitutional experts, and politicians and analysts. According to them, the decision reflects the prevailing double standards in cases of a similar nature.

On the question of the exoneration of Imran Khan, the permeating view was that he had been given relief notwithstanding the fact that he had confessed to owning an offshore company to buy the London flat – and not declaring it. Even former CJ Iftikhar Chaudhry has said that the cases of Nawaz and Imran Khan were of a similar nature but one was given relief and the other was disqualified. The flak drawn by these decisions is very unfortunate and has surely not added to the prestige of the judiciary.

In my columns during the proceedings of the Panama case and the disqualification case of Imran Khan and Jahangir Tareen, I had invariably maintained that whatever the verdicts of the court may be they would generate intractable controversies and the judiciary itself might not be able to emerge unscathed from this quagmire. I had also maintained that it was not appropriate for the SC to delve into cases of a political nature, particularly those that fell under the jurisdiction of other state institutions as per law. Both these cases should ideally have been dealt with by the ECP. My apprehensions have, unfortunately, been vindicated.

Chief Justice of Pakistan Justice Saqib Nisar, while addressing a seminar on ‘Seeking justice – challenges and their solution’ organised by the Pakistan Bar Council at Lahore the day after delivering the verdict in Imran’s case, did try to neutralise the criticism hurled at the judiciary. The honourable CJ strongly quashed the impression that the judiciary has become part of a grand plan and that its decision were given under pressure. He likened the judiciary to a Baba (a wise man of the village) whose integrity and impartiality cannot be doubted.

On the face of it, nobody would dispute the analogy drawn by the CJ. The judiciary is an honourable institution of the state and no society can progress and flourish without the dispensation of justice. But the question is: what does one do when the ‘Baba’ forgets to maintain consistency in his decisions in cases of a similar nature? Legal and constitutional experts like Asma Jahangir have even disapproved of the attempt by the CJ to offer an explanation; in fact, most legal experts believe that judges should speak through their decisions only and avoid public comments on verdicts.

The judiciary may not have been part of any grand plan but there is no denying the fact that the two verdicts do suggest that the Baba may have a case of forgetfulness. The impression of the judiciary not being judicious is also reinforced by the historic role it has played in legitimising military coups and allowing dictators to disfigure the constitution through amendments – notwithstanding the fact that even the judiciary itself did not have the powers to amend the constitution. In those cases, the judiciary was guilty of inventing the doctrine of necessity in blatant violation of the constitution. There are a number of other judicial decisions which had cast a profound impact on the political landscape and contributed to political instability in the country.

The circumstances under which the Panama case was filed in the SC and the events that unfolded during its hearing, including the formation of the controversial JIT, the WhatsApp episode, the leaked picture of Hussain Nawaz and the appointment of a monitoring judge for the references that NAB was ordered to file against the Sharif family, were rather unusual happenings which created doubts about the impartiality of the judiciary.

It is interesting to note that after the Panama verdict, Imran Khan in an interview with a private TV channel had revealed that he had taken the Panama case to the SC on a telephone call from Justice Khosa and the then CJ. This was a very serious allegation, raising questions of judges’ interests in the case. The SC did not take serious note of the allegation and merely restricted itself to issuing a rebuttal of what Imran had said.

Another very pertinent point to be noted is that during the hearing of the Panama case the current CJ had praised Imran as a national leader and made the observation that he had played cricket under him probably in the school meaning that they knew each other. My considered view and the legal experts whom I have consulted on this point is that the CJ should not have been on the bench that heard the disqualification case of Imran Khan and Jahangir Tareen in the first place to avoid the allegations of impartiality.

It is interesting to note that even Imran Khan in a TV interview has criticised Article 62 (1)(f) of the constitution under which Nawaz and Tareen had been disqualified. He was all in favour of this article when Nawaz became a victim of that provision – which was originally inducted in the constitution by a dictator solely to target politicians. It is also perhaps pertinent to point out that the same article had also been criticised by Justice Khosa in the disqualification case of Nawaz Sharif filed by Ishaq Khakwani and others which was rejected by the seven-member bench headed by the then CJ Nasirul Mulk.

In that case (PLD 2015 SC 275), while dismissing the appeal Justice Khosa added an additional note reiterating that many provisions of Article 62 were not amenable to legally enforceable standards. Referring to Article 62(1)(f), he opined: “It is proverbial that Devil himself knoweth not the intention of man. So why () have such requirements in the law, nay the constitution, which cannot even be defined, not to talk of proof”.

In light of the remarks and opinion of Justice Khosa about Article 62(1)(f), it is really mindboggling for constitutionalists and common citizens to understand why that provision was invoked to disqualify Nawaz Sharif when the honourable judge had categorically challenged the existence of that provision in the constitution. Incidentally, the same honourable judge had used words like ‘Sicilian mafia’ against the Sharifs and had also used the word ‘Godfather’ for Nawaz Sharif. Some have called that an unprecedented judicial indiscretion.

Indiscretions like that and the double standards adopted in dealing with cases of a similar nature do invite criticism and create doubts about the integrity of the judges as well as their impartiality.

To earn the unqualified respect of the masses, ‘Baba’ needs to be above subjective considerations and to maintain consistency in decisions when it comes to cases of a similar nature. Respect does not come automatically; it must be earned.

The writer is a freelance contributor.

Email: ashpak10@gmail.com