Daily Times

Moments after the PML-N government’s completion of its full term, as former Chief Justice of Pakistan (CJP) Nasir-ul-Mulk was about to take oath as Pakistan’s caretaker prime minister, the Supreme Court (SC) overturned the April 26 Islamabad High Court (IHC) verdict disqualifying former foreign minister Khawaja Muhammad Asif. Justice Umer Ata Bandial noted that it was sufficient that he had declared his foreign salary and it would not be fair to destroy anyone’s political career.

In a similar case, the SC dismissed a petition seeking Sheikh Rasheed’s disqualification.

The IHC judges had disqualified Khawaja Asif under Article 62(1)(f) for life, while calling him a seasoned and accomplished politician and noting “such litigation unnecessarily drags courts in controversies.” The IHC judgment  clarified it was not due to the iqama as “…disqualification (of former Prime Minister Nawaz Sharif) was due to non-disclosure of assets; holding an ‘Iqama ’cannot be made the basis for attracting Article 62(1)(f) of the Constitution.”

Khawaja Asif’s council had stated any misdeclaration of foreign employment for an iqama, or a work visa, was not intentional. Rasheed had also owned up to an unintentional error in valuing his assets.

Justice Qazi Faez Isa remarked in his dissenting note in Sheikh Rasheed’s SC disqualification case that, “…it is, however, entirely possible that this non-disclosure was an oversight by the first respondent, particularly when there appears to be no benefit or advantage accruing to him on account of such non-disclosure.”

Interestingly, the IHC verdict also stated “…a non-disclosure sans an element of design, scheme or intent would also not make a candidature open to be questioned if it could be shown that it was a bona fide error and that there was no intention to gain any benefit by withholding such information from the constituents.”

Justice Isa warned, “…we must make every effort to dispel the impression that different persons are treated differently[by SC].” He noted that had the same standard of strict liability been applied as was the precedent set by the Panama Judgement in former PM Nawaz’s case, then both Khawaja Asif and Sheikh Rasheed would have also been disqualified.

A high bar should be set to disqualify elected officials who are the representatives of the people lest an awful mistake is made

This raises the question why the possibility of a mistake or misunderstanding was not considered in the Panama case? Should strict liability have been applied on a misdeclaration void of any scheme or political advantage similar to the Khawaja Asif or Shaikh Rasheed cases?

If Article 62 and 63 are based on Islamic and legal principle, then actions that are judged by their intentions cannot be divorced from the reasoning used to interpret them. This principle extends even to daily acts of worship like eating by mistake while fasting doesn’t invalidate one’s fast, omitting a detail in the nomination papers due to a mistake or misunderstanding by no means makes one dishonest or untrustworthy.

A high bar should be set to disqualify elected officials who are the representatives of the people lest an awful mistake is made. The oft stated English Jurist William Blackstone’s formulation comes to mind which states that, “…the law holds that it is better that ten guilty persons escape, than that one innocent suffer.”

A hadith similarly states, “Avoid legal punishments as far as possible, and if there are any doubts in the case then use them, for it is better for a judge to err towards leniency than towards punishment.” (Tirmidhi)

There is something fundamentally wrong with assuming guilt before innocence or basing judgments on presumptions rather than facts. As Babar Sattar mentioned recently, the judgment by Judge Muhammad Bashir sentencing former PM Nawaz to 10 years imprisonment and his daughter Maryam Nawaz for seven years, full of errors and seemingly rushed, relies on conjecture rather than facts. Sattar called the judgment “devoid of legal reasoning” and “an embarrassment for all associated with the justice system.”

The judgment itself states that ownership of the offshore companies or of Avenfield apartments could not be established. Furthermore, the JIT’s lead forensic expert admitted that the Calibri font was available since 2005 and he himself used it prior to it becoming the default font by Microsoft (even though he is not an IT expert) which means that fact cannot be used to ascertain guilt or fabrication. The numerous assumptions are unexplained, illogical, or legally worrisome.

It is alarming that the judgment comes at a time when Justice Shaukat Aziz Siddiqui of the IHC has warned of alleged interference in the affairs of the judiciary by certain state institutions, writing in his recent judgment on missing persons, “Everyone knows […] how proceedings are manipulated, from where strings are pulled…to achieve the desired results.”

In his dissenting note for Shaikh Rasheed’s case, Justice Isa posed seven essential questions that he feels must be answered by a full court as to set a single coherent criterion to assess eligibility of legislators. Should an elected official be disqualified if a misdeclaration has not, “…circumvented some inherent legal disability to participate in an election?”

He also asks whether Article 225 of the constitution which stipulates that election disputes be handled by a tribunal as directed by the Parliament may negate any SC suo moto action on election disputes altogether.

Can the SC, which is not a trial court, deem a person not truthful under Article 62(1) (f) without any other such verdict by lower courts? Justice Isa asks if so would not the same “procedural and evidentiary rules governing election petitions and appeals under the Representation of People’s Act 1976 (RoPA)” apply? And should a disqualification for misdeclaration be permanent or apply only until the next elections?

Since the public elects politicians, does 184(3) make sense to apply for fundamental rights and public interest when the Islamabad judgement against Khawaja Asif admitted that “…the dreams and aspirations of 342,125 registered voters have suffered a setback…” as a result? Would it better serve public interest that such matters are dealt with by elected representatives of the people such as the Parliament or the Election Commission which is mandated to tackle election disputes?

Unfortunately, Pakistan has a disturbing history of political victimization. This makes it important to safeguard the public will and to be more stringent when bringing political cases to the footsteps of the Judiciary. Political victimisation not only targets one person but an entire political party, voters and supporters.

Interestingly, when the CJP gave a talk on judicial reforms earlier this year, he said while reviewing faults within the judiciary, “I feel no shame because I am speaking to my colleagues.” He went on to state, “I don’t think of my friends […in the judiciary] that they are corrupt.” Indeed this healthy benefit of the doubt should be extended across the board.

The author is a freelance journalist and former contributor for Al Jazeera America. She has a Masters degree in Political Science. She can be reached at Meriam.Sabih@gmail.com or twitter @meriamsabih

Published in Daily Times, July 23^rd 2018.