Panama Judgement and the Disqualification of Nawaz Sharif

The Prime Minister of Pakistan Nawaz Sharif was disqualified by the Supreme Court of Pakistan for not being honest about his assets in his Nomination papers submitted at the time of his Election.

 

Earlier this year, the Supreme Court took constitutional petitions by Imran Khan, Sheikh Rashid and Siraj Ul Haq praying that NS be disqualified for holding assets that far exceeded his declared sources of income. A JIT was formed to investigate the allegations. The court said that:

 

“By a majority of 3 to 2 (Asif Saeed Khan Khosa and Gulzar Ahmed, JJ) dissenting, who have given separate declarations and directions, we hold that the questions how did Gulf Steel Mill come into being; what led to its sale; what happened to its liabilities; where did its sale proceeds end up; how did they reach Jeddah, Qatar and the U.K.; whether respondents No. 7 and 8 in view of their tender ages had the means in the early nineties to possess and purchase the flats; whether sudden appearance of the letters of Hamad Bin Jassim Bin Jaber Al- Thani is a myth or a reality; how bearer shares crystallized into the flats; who, in fact, is the real and beneficial owner of M/s Nielsen Enterprises Limited and Nescoll Limited, how did Hill Metal Establishment come into existence; where did the money for Flagship Investment Limited and other companies set up/taken over by respondent No. 8 come from, and where did the Working Capital for such companies come from and where do the huge sums running into millions gifted by respondent No. 7 to respondent No. 1 drop in from, which go to the heart of the matter and need to be answered. Therefore, a thorough investigation in this behalf is required.”

 

These were the questions that the JIT was to answer in its report but the main questions became irrelevant at the time of the final judgement. The JIT discovered a Bank Account and Work Permit in the name of Nawaz Sharif as the Chairman of the board of Capital FZE. The account contained salaries that, although were not withdrawn, were interpreted as assets which required disclosure in terms of ROPA 1976 Section 12(2). The counsel for the Respondent argued that the position the respondent held was ‘ceremonial’ and the salaries were never withdrawn by him. This, the Court held, doesn’t make any difference because the receivables were still in fact ‘undeclared assets held by NS’. The court directed NAB to file references against NS and his Family in the Accountability Court. And the Court also noted that his daughter Maryam Nawaz Sharif exhibited forged documents in court and attempted to pose herself as merely a trustee and not real owner of the said property in London.

 

The questions that the JIT was to investigate were altogether missing from the final judgement and except a brief mention of Maryam’s role in concealing her ownership of London flats, there is no mention of the money trail or NS’s role in acquiring these assets. An elected leader of the house was dismissed for being dishonest, a test which if implemented across the board would expose every individual as one. This noose of Article 62 and 63 would fit just the necks of Generals, Bureaucrats and Judges just as well as it does around the corrupt necks of Politicians.

 

Over and over again the court emphasises on its role as the guardian of Rule of Law and the Constitution, and reaffirms its dedication and resolve to strengthen the institution and to refrain from extending its jurisdiction beyond the prescribed boundaries set by the Law.

“Yes, the officers at the peak of NAB and FIA may not cast their prying eyes on the misdeeds and lay their arresting hands on the shoulders of the elites on account of their being amenable to the influence of the latter or because of their being beholden to the persons calling the shots in the matters of their appointment posting and transfer. But it does not mean that this Court should exercise a jurisdiction not conferred on it and act in derogation of the provisions of the Constitution and the law regulating trichotomy of power and conferment of jurisdiction on the courts of law. Any deviation from the recognized course would be a recipe for chaos. Having seen a deviation of such type, tomorrow, an Accountability Court could exercise jurisdiction under Article 184(3) of the Constitution and a trigger happy investigation officer while investigating the case could do away with the life of an accused if convinced that the latter is guilty of a heinous crime and that his trial in the Court of competent jurisdiction might result in delay or denial of justice. Courts of law decide the cases on the basis of the facts admitted or established on the record. Surmises and speculations have no place in the administration of justice. Any departure from such course, however well-intentioned it may be, would be a precursor of doom and disaster for the society. It as such would not be a solution to the problem nor would it be a step forward. It would indeed be a giant stride nay a long leap backward. The solution lies not in bypassing but in activating the institutions by having recourse to Article 190 of the Constitution. Political excitement, political adventure or even popular sentiments real or contrived may drive any or many to an aberrant course but we have to go by the Law and the Book. Let us stay and Act within the parameters of the Constitution and the Law as they stand till the time they are changed or altered through an amendment therein.”

 

And then the Court went on to do just what it said it was trying avoid. Dismissing a member of Parliament is the exclusive domain of Election Commission of Pakistan and is quite clearly elaborated under Article 63 of the Constitution which states:

 

  • If any question arises whether a member of Majlis-e-Shoora (Parliament) has become disqualified from being a member, the Speaker or, as the case may be, the Chairman shall, unless he decides that no such question has arisen, refer the question to the Election Commission within thirty days and should he fail to do so within the aforesaid period it shall be deemed to have been referred to the Election Commission.

  • The Election Commission shall decide the question within ninety days from its receipt or deemed to have been received and if it is of the opinion that the member has become disqualified, he shall cease to be a member and his seat shall become vacant.

 

It should not have appeared that the Court was hell bent on disqualifying Nawaz but sadly that’s exactly what it looked like.

 

This judgement might prove to be a disaster in the long run because Supreme Court has assumed a role that, strictly speaking, doesn’t belong to the judicature. Will Supreme Court take up petitions against all future Prime Ministers and go through all these procedures to make sure that he is ‘honest’? Will the Apex court become an ‘accountability court’ to persecute and disqualify Members of Parliament? Does it not amount to interference?

 

These are the questions that have been worrying me ever since the judgement came out. My contention again is not that Nawaz Sharif was wrongly prosecuted, I only think that he was prosecuted with unnecessary haste and in a manner that is unbecoming of the highest court of the land. This judgement weakened the Parliament, NAB, FBR and FIA and assumed the role of headsman while it should have restricted itself to oversee the process to ensure fair play.

 

As far as Article 62 and 63 of Constitution of Pakistan 1973 are concerned, these are vague precepts on which any person can easily be disqualified. The words Righteous and Honest are not defined properly and the available definitions are stringently religious in their tone and tenor. What scale will be used in future to gauge a persons’ honesty and righteousness?

 

A dangerous precedent has been set by the Supreme Court and the haste with which the final judgement was given, not to mention that the respondent was never personally examined or heard, is unfortunate. Further inquiry might have exposed him as a tax evader, a corrupt and malevolent politician who amassed great wealth through unfair means. In my opinion, it would have been more fair and viable to dismiss him on the charges of corruption or exercising undue influence. The Court has thrown itself into the arena of politics and this is just the beginning of an even more chaotic future. In future, the expectations will get so high from the apex Court that we might usher in an era of ‘Judicial Martial Law’.

 

For the forces that are against democracy in this country, Chaos isn’t a bad thing at all. For them it is a capital to profit from, a ladder (in the words of Lord Petyr Baelish) to reach heights that are other wise unattainable. They now have a subdued Civilian Leadership on its knees, just the way they like it.

 

Rule of Law requires across the board accountability of all and sundry, and there is not a chance that a former Army Chief will or can ever be held accountable. Because that’s just how things are. Only the ‘filthy politicians’ will be made to face the gallows while the ‘sons of soil’ will be accorded every opportunity to loot and escape.

 

So for the politicians revelling in this moment of ecstatic glee there is actually very little to celebrate. Although Nawaz is gone, the party still holds a majority in the Parliament and the prospects for the next general elections look quite bright. Nawaz will be replaced by his insensible Brother and his inept Nephew and its not going to do any good to anyone.

 

Without knowing it, the politicians from the opposition parties are like the men rushing to collect fuel from an overturned oil tanker and it will only require one cigarette lighter to burn them all. They are at the precipice of annihilation, and so is Democracy.

 

 

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