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Friday March 29, 2024

Reign of discretion: Part - I

By Babar Sattar
December 30, 2017

Rule of law is distinguishable from rule of men because law promises certainty. People know what the rules are and can order their lives accordingly. If they violate the rules, predetermined consequences flow.

You know you can drive when the light is green, slow down when it turns orange and stop when it is red. If you could be fined while passing a green light or are allowed to drive through a red light as and when a traffic sergeant decides in his discretion that doing so is in the right thing to do, would it qualify as rule of the sergeant or rule of law?

Everyday superior courts chide public officials and issue writs for arbitrary or unreasonable exercise of discretion. The object of our constitutional system of checks and balances (where the legislature writes laws, the executive administers them and the judiciary oversees their just enforcement) is to ensure that we are a rule of law society. The superior courts’ primary job of interpreting the law is meant to clarify any ambiguity in the law to enable citizens to understand their obligations and rights and to lay down precedents and tests for state officials to follow and apply.

Nawaz Sharif, Imran Khan and Jehangir Tareen’s cases have unfortunately sown further confusion regarding what might attract disqualification for an elected representative, the test a court would apply to make such determination, the court or forum that would take cognizance of such matter, the substantive and due-process rights to be afforded to a representative whose qualification is challenged, the purpose of Article 10A that is due process promise, the scope of Article 184(3) from which the Supreme Court derives unbridled power, and overall balance of power between representative and un-representative institutions.

Rather than adding certainty to law and jurisprudence, our highest court has drawn lines in sand that can be erased and redrawn in subsequent cases on the basis of subjective preferences of individual judges comprising the bench hearing such cases. This impairs the basic function of the judiciary as a dispassionate interpreter of law to expound its meaning such that the law speaks explicitly with one voice (notwithstanding the idiosyncrasies or preferences of judges) and enables citizens bound by law to predict the outcome of judicial proceedings with certainty.

What has been clarified by the JKT disqualification case is that the SC: (i) views grounds for disqualification under Articles 62/63 separate from and independent of grounds under Section 99 of the Representation of Peoples Act, 1976 (which is essentially a condensed statutory version of Articles 62/63); (ii) has assimilated quo warranto jurisdiction (exercised by high courts) within Article 184(3); and (iii) will act as a court of first instance to form a tentative opinion regarding the honesty of legislators, and disqualify them on such basis without trial.

The JKT judgment reflects a huge gap between its own ratio and obiter dicta. For example, it states that “we are clear in our mind and view that quo warranto writ can only be issued by the court against the parliamentarians in exceptional cases”. But then it goes on to disqualify JKT on the basis of non-disclosure of an estate in the UK on the basis of reasoning that is internally inconsistent when considered across the three grounds of disqualification raised within the same petition, and even more glaringly so when compared with reasoning in IK’s case.

Let’s first consider the three-pronged test prescribed by the SC to determine the maintainability of 184(3) quo warranto petitions on the basis of Article 62(1)(f): one, that the disqualification attributed must have “direct and close nexus to corruption”; two, a “prima facie serious case” is made out from the grounds set out in the petition; and three, the petition should not be motivated by extraneous considerations or brought forth by a petitioner who lacks bona fides. What will constitute a “direct and close nexus to corruption”, the court doesn’t say.

The case against JKT was that: (i) he was liable for disqualification having settled a matter with the SECP by repayment of profits made through insider trading; (ii) he had not truthfully declared his agriculture land and income; and (iii) he had not disclosed an estate in the UK held by an offshore company of which he was a beneficiary. The first allegation was rejected largely on the basis that JKT paid penalty for insider trading “without prejudice” and as he was never convicted under the relevant law, the matter was now a “past and closed transaction”.

The SC states that “when a person is alleged (and not proven) to have violated some law in the past and is elected subsequently as a member of the parliament, he cannot be held to be dishonest under Article 62(1)(f) in quo warranto proceedings. However if during the term of his office a member of parliament is declared by a forum of competent jurisdiction of having incurred a disqualification…he can be removed from the office by superior courts in exercise of their quo warranto jurisdiction.” (No forum, other than the SC itself, declared JKT disqualified while in office.)

The second allegation was rejected on the basis that it was not for the SC to determine whether someone had falsely declared his agriculture income or failed to discharge his tax liability in the past as the law provided an aggrieved person “with a complete hierarchy of further remedies before higher forums” and thus the SC should not issue a declaration of dishonesty “on the basis of our own interpretation of the law for the first time…” It is settled law that superior courts don’t exercise discretionary jurisdiction to render statutory remedies redundant.

The reasoning in relation to the third ground is quite incredible. Before finding JKT dishonest within the meaning of 62(1)(f) for non-declaration of Hyde House in the UK, the SC holds that “the entire amount for the purchase and construction of Hyde House was sent by the respondent (JKT) in a legal way through proper banking channels”, but goes on to rule that: “perhaps SVL [Shiny View Ltd, the offshore company that owns Hyde House] was created as a repository to hide his tax paid money …the object behind this exercise was to hide and stash the said money, SVL and the property from the tax authorities and from the public eye”.

The SC doesn’t explain the sinister and corrupt motive for which a taxpayer would hide an asset purchased abroad from tax paid income sent through formal banking channels. It doesn’t say what benefit might accrue from hiding an asset purchased from ‘white money’ in a country like ours where income is taxed but not wealth (especially when interest in the property held indirectly by JKT’s kids is disclosed in their wealth statements). Circling back to the three-pronged test stated earlier, it doesn’t say how does this omission is directly and closely linked to corruption.

The SC notes in its judgment that non-declaration of assets is a violation of Section 12(2) of ROPA, but doesn’t explain why it elected to exercise 184(3) jurisdiction as opposed to exercising restraint in presence of remedies provided under ROPA. The SC also notes that non-disclosure of assets is an offence that attracts punishment under the Income Tax Ordinance, but again doesn’t state why it wouldn’t let the machinery that is under tax laws take its course and rule on such matters as it does when considering allegations related to non-disclosure of agriculture income.

While considering allegations related to JKT’s agriculture income, the SC rules out holding inquisitorial proceedings and wants statutory remedies to be utilised. But in relation to Hyde House and SVL, it embraces the inquisitorial approach, lays the burden of proving his innocence on JKT and ultimately slaps him with disqualification after labelling him dishonest, without recourse to the statutory remedies under ROPA or tax laws. The JKT case establishes how discretional in its conception is the stated test for exercise of Article 184(3) powers in relation to Article 62(1)(f) and how impressionistic and unpredictable its application.

To be concluded

The writer is a lawyer based in Islamabad.

Email: sattar@post.harvard.edu