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February 24, 2018

Final but not infallible


February 24, 2018

For the Supreme Court to command the respect of the people of Pakistan, its judgments must be perceived as fair and consistent. On both scores, the rulings in the Panama Papers case and the Imran disqualification case leave something to be desired.

I have previously analysed in these pages the judgment against Nawaz Sharif and found it to be deficient. I expressed the view that the minority judgment, which set the pace for what was to follow, was based on material misreading of the record; whereas the majority judgment disturbed centuries of jurisprudence by concluding, simply on the basis that Nawaz Sharif did not declare the receivable from his son’s company, that he was therefore dishonest. This it did without a word on why the mistake could not have been innocent, or what possible advantage Sharif may have sought to gain by this omission, so that we must conclude that he was dishonest in not declaring the receivable. To put it technically, the court held that actus reus was enough to prove dishonesty, without any discussion on mens rea, which is the more critical element in dishonesty. This is a dangerous precedent, however.

A similar case would arise if a judge deliberately misread the record of a case. That would amount to misconduct, which can be tried by the Supreme Judicial Council. But if he innocently misread the record, even if to render a horrendously incorrect judgment – which is possible since we are all human – he would not be charged with misconduct. Now, if we are to go with the reasoning of the majority of the Supreme Court in the Panama case, we would have to conclude that simply because one of the judges misread the record, which is easily proven, this means that he can be shown the door by the Supreme Judicial Council on account of misconduct, without having to prove the more critical element of misconduct, namely dishonest intent. This is so elementary that I find it unreal that the majority of the Supreme Court committed this error, and did not even correct it in review.

Coming now to the judgment in the Imran Khan case, while there are several points on which one may disagree with the honourable court, I was particularly keen to see how the court would address the tax amnesty availed by Imran in 2000. It would be recalled that Imran admits to having purchased his London flat in 1983, which was not declared in his tax returns in Pakistan, and he also did not pay wealth tax on it – until it was declared for the first time under the Tax Amnesty announced in 2000. He paid Rs246,000 to regularise the past default.

The question I had in mind was: can an admitted tax defaulter be considered sadiq and ameen by the Supreme Court? So it is with interest that I read the judgment authored by the honourable chief justice. This is what he had to say about the immunity availed by Imran: “To subsequently impute dishonesty and to prosecute and punish a person for availing an amnesty scheme would violate the solemn assurance of immunity given by the law and the ‘forgiveness’ that is thereby entailed.” On this basis, the court chose to overlook seventeen years of default and tax evasion. But since it is a constitutional stipulation that dishonest individuals should not be permitted to enter parliament, if we accept the above reasoning, would this not mean that the intent of the constitution can so easily be defeated by a sub-constitutional law (even an executive amnesty for that matter)! That to me is illogical.

I can therefore understand if many people are not convinced that the rulings by the Supreme Court relating to Nawaz Sharif and Imran Khan are fair and consistent. In fact, would say that just as the Bhutto case was judged differently by history, these rulings too are likely to suffer the same fate.

This brings us to the question of whether a person declared ‘dishonest’ by the Supreme Court is permitted to head a political party. The Supreme Court has just ruled that he cannot, even though Article 17(2) of the constitution is as follows: “Every citizen, not being in the service of Pakistan, shall have the right to form or be a member of a political party, subject to any reasonable restrictions imposed by law in the interest of the sovereignty or integrity of Pakistan.” But if every citizen (even a criminal) has the right to form a political party, does that not mean that he can also be the head of that party, so long as there is no law barring that in the interest of the sovereignty or integrity of Pakistan?

The Supreme Court has read Article 17 subject to Articles 62 and 63, which prescribe qualifications and disqualifications for members of parliament. But if that were the intent of the constitution, Article 17 would not need to state that the fundamental right to form a political party is not available to anyone in the service of Pakistan, as that disqualification already exists in Article 63. Again, I find myself in complete disagreement with the court.

There are sound reasons as well why the constitution does not debar a person who has been declared ‘dishonest’ by the Supreme Court from forming (and thereby heading) a political party. This recognises that, while the Supreme Court has the final word, there is no reason to impute infallibility to its judgments. It is rather the people of Pakistan who are the ultimate check on who may be elected to serve them. If they find the Supreme Court ruling against any person fair, they would choose not to elect his party, but if they do, this means that the judgment erred in their opinion. Importantly, the constitution gives people the right to hold and express that opinion.

Coming back to the disconnect between Supreme Court verdicts and public perceptions (as reflected in recent by-elections), what has also not helped is the manner in which cases have been conducted of late. Far too many observations have been reported. A recent trip by an entire bench of the Supreme Court to the Mayo Hospital may then have given the impression that disposal of pending cases is not the top most priority.

To correct perceptions, one would also have liked a different bench to adjudicate the issue of party head than those who ruled in the earlier cases (one is even supervising the NAB proceedings). The ruling may not have been different, but this would have avoided needless misgivings in the PML-N camp – which feels aggrieved by the lack of right of appeal, as it is. That the Supreme Court did not protect past transactions also seems inconsistent with previous rulings and is likely to add to misgivings.

So what can one advise the honourable judges, going forward? My advice is to recognise that they are final, but by no means infallible. I believe that the prestige of the Supreme Court would be better served thus.

The writer is a Lahore-based lawyer.

Email: [email protected]

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