Daily Times

The Supreme Court is not a court of trial. It does not hold trials even under its original jurisdiction. Disqualification is a matter to be decided based on triable facts. If the Supreme Court applies its jurisdiction on the matter, only then can it reach its decision based on documentary evidence. There is no witness box in the Supreme Court to cross-examine witnesses

The Panama Papers case may be over. But has spawned a number of questions. Many of which are being asked by the party that lost the contest. In our system of law, one side must usually prevail over the other. As a result of which the losing party is left in a state of perpetual loss and grievance. Nawaz Sharif’s lawyers and loyalists may never concede their argument and continue to claim that their leader was wronged by the court. As it happens, there may have been reasons that support this position. Nawaz Sharif’s perceived injustice could be due to the legal insufficiencies of our legal and constitutional structure, the absence of the rule of law, societal imbalances and the varying nature of the notion of justice which remains out of reach for most. The problem doesn’t lie with the judges. It’s the absence of structural harmony of law and a balanced constitutional scheme.

One of the central concerns about the way in which the Nawaz Sharif case was tried still remains. It was a petition for disqualification from being a member of the National Assembly. As a consequence of which he lost his office. However, the lingering question is that of the choice of forum by the petitioners. The Supreme Court is not a court of trial. It does not hold trials even under its original jurisdiction. Disqualification is a matter to be decided based on triable facts. If the Supreme Court applies its jurisdiction on the matter, only then can it reach its decision based on documentary evidence. There is no witness box in the Supreme Court to cross-examine witnesses.

In Pakistan, when judges have to be selected by design, they are retired at 65 years — in their legal and judicial prime — only to be thrown out to worry about life after retirement

Ordinarily, matters of disqualification are required to be addressed to the Election Commission for adjudication. However, in this case the petition seeking the declaration of disqualification of Nawaz Sharif found its way directly to the Supreme Court, relying on Article 184(3) of the Constitution. The reason for this untypical route was that the petitioners were relying on disqualification based on Articles 62 and 63. A breach of Article 62, which lists qualifications becomes disqualification. In other words, if someone has told a lie, he cannot be considered honest and thus, is disqualified.

Interestingly, this matter was clearly within the jurisdiction of the Election Commission and not the Supreme Court. An erroneous claim was made by Imran Khan in a TV interview that he was invited by a judge to bring the case to the apex court. A statement that was swiftly rejected by the Registrar of the Court.

For many years, the injection of certain Islamic or morally driven values into the Constitution (Article 62, in this case) by Zia has created an enigma for legal practitioners. The 18th Amendment went some way to limit the vagueness of Article 62 by adding the need for a declaration by a court of law. This amendment is what enabled the Supreme Court to take up jurisdiction as a court of law and make a declaration as to whether Nawaz Sharif was indeed, honest and ameen.

Upon arrival of the petition, the Registrar rejected it from the very outset, citing it as a frivolous petition. The appeal before hearing Chief Justice Jamali cleared the way for a full bench to commence hearing. One wonders why the CJ admitted the appeal against the Registrar’s decision in the first place. An even bigger surprise was the timid acceptance of the jurisdiction by the respondents as they did not challenge the maintainability of the case. The respondents’ lawyers could have shouted at the top of their voices (in the manner that has become typical in our lower courts) to argue that disqualification without trial would not deliver justice to their clients.

In all fairness, an outcome such as disqualification for life and losing the office of the Prime Minister ought to entail some right of appeal. Frustratingly for the respondents, beyond the limited scope of a review petition, a decision of the Supreme Court cannot be appealed to any higher court — that is why it is called the Supreme Court.

Judges follow the law and constitution while performing their duties. However, there are also occasions where discretionary justice plays a part. In judicial discretion, a judge presiding over cases must act as a legislator — since the applicable legal rules cannot conceivably constrain him. There is always some discretionary space in which the judge enjoys freedom to decide a particular case. This is a discretionary space in which the judge’s decision-making process ought not be mechanically pre-determined by the applicable rules of law.

Given that judicial discretion is capable of leading to an arbitrary outcome, judges have to be clear about when to exercise discretion and when not to. A judge has no discretion in findings of fact and also no discretion in rulings on the law. It is once he has to choose between different courses of action, make orders, apply penalties or remedies, that he is exercising his own discretion. This is only a stage that is arrived at after the judge has considered what the fair and just thing to do would be in the case. In the matter of Nawaz Sharif, the Supreme Court used the provision of Article 62(1)(f) and stamped its discretion simply by virtue of being a court of law.

We now know that if Nawaz Sharif had, at the time of passing the 18th Amendment, pushed the reversal of Articles 62 and 63 to their original 1973 position, he would be the Prime Minister today. Alternatively, if the 18th amendment had not provided arbitrary powers to the Leader of the House and Leader of the Opposition to choose the chairman of NAB then the Panama Papers matter had been taken up as a matter of routine accountability; it is also likely that the then CJ would have agreed with the Registrar and dismissed the petition by Imran Khan as frivolous.

Our legislators hardly make laws in with any grand vision or foresight. Often they simply tow the party line and further self-serving agendas with vested interests and narrow goals. If laws are made to have meaningful scrutiny of the parliamentary candidates and not a present day sham; it would automatically weed out undesirable elements from our assemblies in a systemic way.

The unseen forces of the state function in the way that they have to. We also know that there is never a level playing field in politics. This is not a unique phenomenon to Pakistan and happens all over the world. In Pakistan however, when judges have to be selected by design, they are retired at 65 — in their legal and judicial prime — only to be thrown into worry about life after retirement. This scheme is in-built and casts a shadow over the quality of the judicial system. Despite the universality of some of the issues described, it is worth saying that in the UK and the USA, judges are retired at the ages of 75 and 80, respectively.

This is only to underline that a whole range of reforms across constitution, law, government and politics must take place to create a society in which the person right at the top and the person right at the bottom are both treated equally and fairly.

In all fairness, an outcome such as disqualification for life from holding an elected office ought to entail some right of appeal. Frustratingly for the respondents, beyond the limited scope of a review petition, a decision of the Supreme Court cannot be appealed to any higher court — that is why it is called the Supreme Court

The writer is a barrister, practising law in England and Pakistan

Published in Daily Times,September 25^th 2017.