Judicially Exiled
The
Supreme Court
of Pakistan,
while exercising
its Original
Jurisdiction u/a 184 of
the Constitution
of Islamic
Republic of
Pakistan, pronounced
a Judgment
yesterday in Imran
Ahmed Khan and others Versus Mian Muhammad Nawaz Sharif, Prime Minister of
Pakistan[1],
declaring the respondent no. 1& Prime Minister of Pakistan as disqualified
to hold the office of Prime Minister & membership of the Majlis-e-Shoora
(Parliament). Further investigation has been ordered into his overseas
undeclared ‘assets’ as leaked from what has been termed as Panama Papers. He
has since resigned.
The case is linked to two previous
judgments of the Court & there are a lot of allegations against the
respondent, but the decision of the case hinged on one particular allegation.
He has been accused of amassing wealth disproportionate to his known sources of
income and has failed to disclose those “assets” as required under S. 12 (2) of
Representation of People Act, 1976 (ROPA). He has been found by the Joint
Investigation Team (constituted by the Court) to be the chairman of the Board
of Capital FZE, and as such entitled to the salaries. While the Supreme Court considers the salary to be an asset,
the respondent has claimed that it was only a ceremonial office acquired while
he was in exile in year 2007 and has never withdrawn any salary (AED 10,000),
also since he had nothing to do with the running of the company or supervising
its affairs.
The Supreme Court referred Black’s Law
Dictionary, since asset was not defined in Representation of People Act, 1976
(an enforceable claim against others such as accounts receivable). The Court
again checked the dictionary for the meaning of receivable. The Court then went
on to instantly conclude that the salary which he did not withdraw was a
receivable & hence an asset, whether or not he actually acquired it. The
Court then declared him not honest under S. 99(1)(f) of the ROPA & Article
62 (1)(f). The Court among other directions, directed the Election Commission
to disqualify him as a member of National Assembly (parliament), after which he
would not remain Prime Minister of Pakistan.
Whether Calibri
Font used in 2006 Declared Forgery?- No. Something
that has been widely misreported in media World- over & impressionable
minds of this generation (who trust media reports as gospel truth) must be
clarified at the outset. The Court did not address this point at all, while
deciding the issue of disqualifying the respondent in the whole judgment. The
Court merely recorded the submission of petitioner that in February, 2006, the
use of ‘Calibri Font’ in a trust deed showing another respondent as a trustee, prior
to its commercial launch in (Word) 2007, makes her liable for forgery (I found
a mid- 2006 youtube video of Microsoft word 2007[2],
but the crucial gap of 4 months still remain). Firstly, the makers of a forged
document are liable for forgery, not its beneficiary per se. Secondly the alleged document was allegedly obtained
through Mutual Legal Assistance & not from the Respondent’s possession,
hence evidentiary value of it has to go under further legal scrutiny. This
might very well be the reason, the Court did not touch this issue in delivering
its judgment. And rightly so, the further investigations ordered would
appropriately deal with it since Supreme Court in its original Jurisdiction was
not the forum to deal with a Criminal trial. Lastly, why is it the business of
Courts in Pakistan to look into a possible forgery committed by foreign nationals
on foreign soil for foreign property, when the Courts in London are more than
competent to deal with it? The only reason that the beneficiary is supposed to
be an exiled Pakistani national, is not a fair assertion. For all we know, the
Trust deed might even contain an Arbitration Clause, hence arbitrable in & under
UK Law.
Jurisdiction
Galore-
On the Jurisdiction & due process front, the Court clearly usurped the powers
of Election Commission of Pakistan, which was the right forum to declare the
election of Respondent invalid. Doing so, in the right manner would have also
taken care of the objection raised by Respondent’s counsel that the JIT did not
question or confront the respondents with the documents tending to incriminate
them[3]
& be in compliance of Article 10 A[4].
The Jurisdiction of Election Commission under 76A or ROPA[5],
and the requirement of reasonably being heard (76A (3)) & constitutional
fair trial has been trampled by Supreme Court & its JIT compositely.
Additionally, the
Supreme Court totally forgot that there was a runner up in the Election, who
has to be declared a winner consequently. If one candidate is
disqualified, the other contesting candidate as per Section 76A (1) (b) of ROPA
wins. The disqualification of Respondent or his election being termed void can
not leave the representation of the constituency in vacuum. This is why the
election commission should not have been bypassed, since the speaking order is
quite explicit in nature but only asks the commission to declare Respondent’s
election void & consequently devoid of Prime Minister-ship.
Honesty?- Another interesting point about
the constitution of Pakistan is that it requires the members of Parliament to
be ‘Honest’,
among other peculiar things, as a pre- requisite & their qualification/
disqualification depends on it. No such requirement is seen for the Judges/
Supreme Court of the Islamic Republic of Pakistan. Even though all oaths in the
constitution require that once in
office, they remain honest.
As vague as the term ‘Honest’ is, It only means that a
Paksitani citizen who is not ‘honest’,
is ineligible to be a member of Pakistani Parliament, but is still eligible for
being a Judge of the Supreme Court of Pakistan. I have seen some real bad
drafting in Contracts, Petitions, even judgment writing remains infected, but
taking that infection to the constitution of a nation- state is a totally
different ball game altogether. I can only imagine the hierarchy of honesty in
such a state, which pretty much explains the democratic history of the republic
& its stability. The balance of this constitution is clearly upset, and its
high- time it is repaired/ amended by ‘god’s grace’.
Receivable Salary as Asset- Well, the only point on merits, which allowed Supreme Court of Pakistan
to ‘impeach’
Pakistani Prime Minister Mian Nawaz Sharif, was to declare that he failed to mention
“receivable salary” as asset in his declaration under Section 12 of ROPA, hence
was not ‘Honest’ and liable to be prosecuted & ineligible for membership of
National Assembly & Prime Minister-ship. The Court did not controvert the
submission of Respondent that he was chairman of the Board of Capital FZE, a
foreign Company, in a ceremonial manner & did not run or supervise its
affairs & also did not withdraw any salary. The salary was shown in
employment contract. When this is accepted, it is clear that the respondent did
not possess the salary. Before I come to my criticism of declaring such
un-withdrawn salary as an asset to really nail the respondent for omitting to
declare it as his asset, let me mention the situation surrounding the formation
of the company & the choices before respondent.
The respondent had limited choices to deny the sovereign/ Host state any
privilege or favour imposed on him, where he was exiled for years after a
military coup of his elected government? The respondent at the time was
politically persecuted, and given the history of Pakistan, he was fortunate to
have exiled. Whatever allegations are levelled against the respondent belongs
to those period, when the Supreme Court abdicated its duty towards the
constitution & the respondent for almost a decade, when the constitutional
& civil rights of the respondent were stripped of, the courts remained a
mute spectator. It took years for the courts to find its footing & for
respondent to return back to his country after a landmark ruling in 2009. The
question is, when your state & its organs abandon/ betray you, are you
still answerable to it for whatever you did for your survival? Should the
Supreme Court be really asking what, how & why he did the thing he is
alleged to have done for a primordial instinct, his survival? It must be noted, that he never knew if he
would be allowed back into his home state.
Considering this, if he says that he never withdrew the salary, and
hence did not treat is as his asset to be included in election declaration, I
would say he is well within his rights to abdicate a dark & painful chapter
of his life in exile. Moreover, he doesn’t possess it. He doesn’t intend to.
Why thrust that asset on him? Coming to the point of asset including a
‘receivable’ salary. I would contradict the Court by examples.
· A muslim person may deposit his money in a bank & yet not withdraw
the interest accrued to him, which is otherwise a ‘receivable’ asset. Would the
Court impose the same logic on ordinary citizens, and declare that the interest
is their asset, it being Haram is of little
consequence in law?
· A lawyer may raise his legal fees according to the arrangement made with
his client, but the client may choose not to clear his fees. The fees are
legally receivable, but would we impose the fees that he does not possess as
his asset, regardless of he having abandoned that claim?
The definition of asset must not be seen with the narrow sense of
accounting, when the purpose of declaring it is a social one as compared to a
commercial one. When dealing with individuals, one must see the aspect of
possession or the intention of acquiring that possession. An abandoned claim,
does not suit the definition of asset for the purpose of an election
declaration. For all we know, Respondent might see the salary as Haram
or an abandoned claim.
I would conclude by saying that it is not a very illuminating judgment.
It is more hyped because of the political consequences it brings along with it.
Only a word of caution- When a leak/
report takes down a government or its representative, the possibility of it
being orchestrated at various levels should never be ruled out & must be thoroughly
investigated. Political battles must only be fought through votes in election, in a
democratic society. When that stops happening, the democracy is done for that generation,
or worse. When you allow this kind of toppling of political power to take
place, you are only inviting more in future.
[1]
http-_www.supremecourt.gov.pk_web_user_files_File_Const.P._29_2016_28072016.pdf
as
visited on 28.07.2017
[2] https://www.youtube.com/watch?v=z7ObjBkwApQ
as visited on 28.07.2017
[3] “…the investigation
conducted by the JIT cannot be said to be fair and just when none of the
respondents was questioned about or confronted with any of the documents
tending to incriminate them and that the JIT exceeded its authority while
obtaining documents from abroad by engaging the firm of the persons happening
to be their near and dear. Such exercise, the learned Sr. ASC added, cannot be
termed as Mutual Legal Assistance by any interpretation…”
[4] Right to
fair trial :10A. For the determination of his civil rights and obligations
or in any criminal charge against him a person shall be entitled to a fair trial
and due process.
[5] 76A. Additional powers of
Election Tribunal.- (1)If an Election Tribunal, on the basis of any material
coming to its knowledge from any source or information laid before it, is of
the opinion that a returned candidate was a defaulter of loan, taxes,
government dues or utility charges, or has submitted a false or incorrect
declaration regarding payment of loans, taxes, government dues or utility
charges, or has submitted a false or incorrect statement of assets and
liabilities of his own, his spouse or his dependents under section 12, it may,
on its own motion or otherwise, call upon such candidate to show cause why his
election should not be declared void and, if it is satisfied that such
candidate is a defaulter or has submitted false or incorrect declaration or
statement, as aforesaid, it may, without prejudice to any order that may be, or
has been made on an election petition, or any other punishment, penalty or
liability which such candidate may have incurred under this Act or under any
other law for the time being in force, make an order
(a) declaring the election
of the returned candidate to be void ;and
(b) declaring any other
contesting candidate to have been duly elected.
.
(3) No order under
sub-section (1)or sub-section (2) shall be made unless the returned candidate
is provided an opportunity of, being heard.
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