The Panama Papers verdict triggered a constitutional and political debate regarding the power of the Supreme Court (SC) to disqualify an elected member of the parliament on the basis of a criteria laid down in Articles 62 and 63 of the Constitution. Subsequent judgments in cases relating to Imran Khan and now Sheikh Rasheed Ahmed have raised questions regarding SC’s independence. There is a growing perception that the SC has disqualified some not sufficiently honest politicians while others, facing broadly similar charges, have been declared adequately honest and truthful. If this perception is allowed to continue, the fairness of our electoral process and the legitimacy of SC judgments may be called into question.
With reference to the disqualification of parliamentarians by the SC, in terms of the Representation of the People Act, 1976 (ROPA) and Article 62 (1)(f) of the Constitution, the SC judge Qazi Faez Isa, in his dissenting opinion, said, “When the facts are clear but different benches of this court, comprising of the same number of judges, have taken divergent views, the matter needs urgent resolution.” Further, the honourable judge requested the chief justice of Pakistan (CJP) to form a full court bench to decide the following questions of law: Does every nondisclosure or misdeclaration in a nomination form result in disqualification of a candidate or only those whereby one has circumvented some inherent legal disability to participate in an election? If a petition does not disclose the particular facts, on the basis of which disqualification is sought, can these be considered when subsequently disclosed in the affidavit-in-evidence of the petitioner or which may otherwise be discovered during the hearing before the court? Does Article 225 of the Constitution [regarding the determination of elections disputes by the election tribunals] exclude the application of Article 184(3) of the Constitution [regarding qualification or disqualification of an elected member of parliament] to election disputes? If Article 225 of the Constitution does not exclude the application of Article 184(3), then is an election dispute regarding an individual’s qualification or disqualification a matter of “public importance” which requires the “enforcement” of a fundamental right? If it is a matter of public importance requiring the enforcement of a fundamental right, are the procedural and evidentiary rules governing election petitions and appeals under the ROPA the same as those governing petitions under Article 184(3)? Does the “court of law” mentioned in Article 62(1)(f) of the Constitution include the Supreme Court when exercising jurisdiction under Article 184 (3)? If a candidate is disqualified on account of nondisclosure or misdeclaration does such disqualification subsist only till the next elections or is it permanent?
Given the confusion within the legal fraternity and the public, clarity by a larger bench would help as every error in declarations in the nomination forms may not be basis for disqualification. Obvious conflicts between the jurisdiction of election tribunals to decide election disputes and the suo motu power of the SC to hear cases of violation of fundamental rights may not be allowed to persist. Also the issue of duration of disqualification may be resolved to ensure political stability.
SC judge Azmat Saeed has said, “If the course of action as suggested by my learned brother Qazi Faez Isa, J., is followed, then all election disputes which will inevitably crop up… would also not be adjudicated upon till the decision of this Appeal as such election disputes, too,… revolve around the questions raised. In such circumstances, the very validity of the proposed general elections of 2018 would become questionable and the acceptance of its result by the participants almost impossible. In fact, the entire electoral process would be put at risk.” With due reverence to this opinion, one may argue that inconsistency and confusion of any kind would, in fact, lead into prolonged legal battles and political turmoil.
The divergence of judicial opinion is common. Dissenting opinions help in the growth of jurisprudence. While independence of each judge enhances people’s trust in the judicial system, unpredictability and uneven application of the law can also create distrust. When there is a sharp difference of opinion between two judges and benches of an equal number of judges, as appears to be in the present case, it seems logical to benefit from the wisdom of a larger bench.
Answering legal questions as to the disqualification of parliamentarians and the powers of the SC is of paramount importance for the project of democracy. When a significant political party builds its case on a narrative of judicial victimisation, addressing legal questions becomes essential for the strengthening of both judicial and political institutions. In the larger national interest, the CJP is urged to constitute a full court bench to decide the important questions posed by Justice Qazi Faez Isa.
The writer is a lawyer and can be reached at zranjahlaw@gmail.com
With reference to the disqualification of parliamentarians by the SC, in terms of the Representation of the People Act, 1976 (ROPA) and Article 62 (1)(f) of the Constitution, the SC judge Qazi Faez Isa, in his dissenting opinion, said, “When the facts are clear but different benches of this court, comprising of the same number of judges, have taken divergent views, the matter needs urgent resolution.” Further, the honourable judge requested the chief justice of Pakistan (CJP) to form a full court bench to decide the following questions of law: Does every nondisclosure or misdeclaration in a nomination form result in disqualification of a candidate or only those whereby one has circumvented some inherent legal disability to participate in an election? If a petition does not disclose the particular facts, on the basis of which disqualification is sought, can these be considered when subsequently disclosed in the affidavit-in-evidence of the petitioner or which may otherwise be discovered during the hearing before the court? Does Article 225 of the Constitution [regarding the determination of elections disputes by the election tribunals] exclude the application of Article 184(3) of the Constitution [regarding qualification or disqualification of an elected member of parliament] to election disputes? If Article 225 of the Constitution does not exclude the application of Article 184(3), then is an election dispute regarding an individual’s qualification or disqualification a matter of “public importance” which requires the “enforcement” of a fundamental right? If it is a matter of public importance requiring the enforcement of a fundamental right, are the procedural and evidentiary rules governing election petitions and appeals under the ROPA the same as those governing petitions under Article 184(3)? Does the “court of law” mentioned in Article 62(1)(f) of the Constitution include the Supreme Court when exercising jurisdiction under Article 184 (3)? If a candidate is disqualified on account of nondisclosure or misdeclaration does such disqualification subsist only till the next elections or is it permanent?
When there is a sharp difference of opinion between two judges and benches of an equal number of judges, as appears to be in the present case, it seems logical to benefit from the wisdom of a larger bench
Given the confusion within the legal fraternity and the public, clarity by a larger bench would help as every error in declarations in the nomination forms may not be basis for disqualification. Obvious conflicts between the jurisdiction of election tribunals to decide election disputes and the suo motu power of the SC to hear cases of violation of fundamental rights may not be allowed to persist. Also the issue of duration of disqualification may be resolved to ensure political stability.
SC judge Azmat Saeed has said, “If the course of action as suggested by my learned brother Qazi Faez Isa, J., is followed, then all election disputes which will inevitably crop up… would also not be adjudicated upon till the decision of this Appeal as such election disputes, too,… revolve around the questions raised. In such circumstances, the very validity of the proposed general elections of 2018 would become questionable and the acceptance of its result by the participants almost impossible. In fact, the entire electoral process would be put at risk.” With due reverence to this opinion, one may argue that inconsistency and confusion of any kind would, in fact, lead into prolonged legal battles and political turmoil.
The divergence of judicial opinion is common. Dissenting opinions help in the growth of jurisprudence. While independence of each judge enhances people’s trust in the judicial system, unpredictability and uneven application of the law can also create distrust. When there is a sharp difference of opinion between two judges and benches of an equal number of judges, as appears to be in the present case, it seems logical to benefit from the wisdom of a larger bench.
Answering legal questions as to the disqualification of parliamentarians and the powers of the SC is of paramount importance for the project of democracy. When a significant political party builds its case on a narrative of judicial victimisation, addressing legal questions becomes essential for the strengthening of both judicial and political institutions. In the larger national interest, the CJP is urged to constitute a full court bench to decide the important questions posed by Justice Qazi Faez Isa.
The writer is a lawyer and can be reached at zranjahlaw@gmail.com