The De Facto Doctrine Should Not Be Taken Lightly

The De Facto Doctrine Should Not Be Taken Lightly

Background

The release of Panama Papers (commonly termed as the ‘Panama Leaks’) took Pakistan by storm, as in addition to many Pakistani citizens, the offshore accounts of the family of the then sitting Prime Minister, Mian Muhammad Nawaz Sharif came to light. After a considerable amount of criticism by the opposition, political clarifications and never-ending discussions in Parliament, the Supreme Court of Pakistan was approached under Article 184(3) of the Constitution of the Islamic Republic of Pakistan. On 28th July, 2017, the verdict was announced according to which Mr. Nawaz Sharif was disqualified, under Article 62(1)(f), for not being “sagacious, righteous and non-profligate and honest and ameen”. Surprisingly, even though the original petition sought to disqualify him on the basis of his link with off-shore companies revealed in the Panama Leaks, the actual basis of his disqualification turned out to be the unwithdrawn salary under a work permit – that is a different debate altogether.

The disqualification of the ex-premier, inter alia, also resulted in his dismissal from the post of the President of his political party (PML-N), as under election laws a person who is disqualified or not qualified to contest an election is not eligible to head a political party as well. Although much could not be done against the verdict of the Supreme Court after the dismissal of the review of the same, the overwhelming majority of the PML-N could still legislate (no matter how unpopular a law was), and so they went on to amend the election rules through a new piece of legislation known as the Elections Act 2017. This new Act abolished the requirement that a person had to be eligible to become a member of Parliament in order to head a political party, paving the way for Mr. Nawaz Sharif to become the President of PML-N again. As soon as the Elections Act 2017 came into force, the PML-N working committee made amendments to the party’s constitution and re-elected Mr. Nawaz Sharif as the President of the party.

However, the vires of Elections Act 2017 were soon challenged by the opposition parties and some individual petitioners. On 21st February, 2018, a 3-member bench of the Supreme Court through a short order interpreted Art. 203 of the Elections Act of 2017 in a way which was in line with the provisions of Article 62 and 63 of the Constitution – meaning thereby that a person who was not qualified under Articles 62 and 63 could not head a political party. Resultantly, the ex-Prime Minister was removed from the post of presidency of the PML-N once again.

For the purposes of this article, an analysis of the merits or demerits of the decision is not needed, but the final paragraph of the judgment will be of some relevance:

“9. As a result of the above declaration, all steps taken, orders passed, directions given and documents issues by Respondent No. 4 as Party Head after his disqualification on 28.07.2017 are also declared to have never been taken, passed, given or issued in the eyes of the law.”

The De Facto Doctrine

(De facto: As a matter of fact, not necessarily by legal right; de jure: as of right/ according to the law).

A bare reading of the above-quoted paragraph shows that the apex court, after giving its decision, chose not to apply the ‘de facto doctrine’ and thus declared all the acts of Sharif as party head illegal and without authority, retrospectively. Application of the de facto doctrine would have simply meant that although an office was held illegally, decisions rendered by it before the judgment of court would hold ground and must have been accepted for all practical purposes.

The doctrine of de facto ensures smooth running of the system and gives validity to the acts performed in the interests of a third party by an officer/authority. However, its application is dependent on three prerequisites:

  1. There should be possession of office and performance of duties attached to it;
  2. There should be some apparent right to the office and acquiescence in possession thereof by the public; and
  3. The act in question should not be for the usurper’s own interest.

Needless to say, all these prerequisites do not create any hurdle in the case under discussion.

The Need for De Facto Doctrine to Apply in the Judgment Deciding the Fate of Elections Act 2017

I would not have felt the need to write an article to emphasize that the honourable court should have applied the de facto doctrine, had there been no special circumstances surrounding this particular case. After Sharif, post-disqualification as PM, was still elected as the party head, he in that position took two very important decisions:

  1. He selected the candidate for a by-election of a seat in the National Assembly, which has already been held; and
  2. He nominated all the candidates of PML-N for election to the upper house of Parliament (the Senate).

The judgment declares both of these decisions of the ex-premier void. Therefore, candidates for the Senate elections, chosen by him, decided to contest the elections as independent candidates. The problem with this sort of arrangement is that the party whip is not able to ensure that the members of his or her party vote for their selected candidates, in turn also encouraging the foul practice of ‘horse trading’. On the other hand, the winner of the by-election (nominated by Sharif) is also in a position of great uncertainty until the Election Commission takes a decision regarding the validity of the election in light of the Supreme Court judgment. If the elections are declared null and void, new elections would mean that taxpayers’ money spent on the election would go in total waste and holding of the same would be a considerable amount and burden on the state treasury which is already fettered in loans from the International Monetary Fund (IMF). I firmly believe that the election would be held null and void in light of the restriction placed on the nominated candidates of the Senate, and could only be saved on the basis that it had already been held and holding it again would be quite ridiculous and devoid of any concrete reason. Additionally, it must be highlighted that the decision of the apex court in these two matters (assuming that the by-election would be held void) also affects the rights of third parties and is in contradiction with the entrenched legal maxim audi alteram partem (no person should be judged without a fair hearing in which each party is given the opportunity to respond to the evidence against them).

Application of De Facto Doctrine is a Common Phenomena

Non-application of the de facto doctrine in this case is extraordinary, considering the fact that the doctrine has been used by Pakistani courts on numerous occasions to maintain smooth running of the state and fill in possible voids created in a situation where an appointment of a particular officer is held to be void. It was this same court which declared the appointment of those judges who took an oath under the President Order No. 5 of 2007 during the military regime of General (R) Pervez Musharaf void ab initio, however, in their judgment they applied the de facto doctrine and gave protection to the judgments passed by the aforementioned judges (Sindh High Court Bar Association v Federation of Pakistan [PLD 2009 SC 789]). The decision of this case is in line with the reasoning in Baldock v Webster (2004) [EWCA CIV 1869] where it was held that the de facto doctrine was firmly based in the public policy of protecting the public’s confidence in the administration of justice.

Discussion on the de facto doctrine would not be complete without quoting Lord Truro’s comments in Scadding v Lorant (1851) [2 HL CAS 418], a case where the House of Lords, UK upheld a rate levied by a vestry, although a number of members of the vestry had not been elected duly:

“You will at once see to what it would lead if the validity of their acts, when in office, depended upon the proprietary of their election. It might tend, if doubt were cast upon them, to consequences of the most destructive kind. It would create uncertainty with respect to the obedience to public officers, and it might lead also to persons, instead of resorting to ordinary legal remedies to set right anything done by the officers, taking the law into their own hands.”

Similarly, the de facto doctrine also shows its existence in India. For instance, in Dr. A.R. Sarkar v State U.P [1993 SUPP (2) SCC 734] it was held by the Supreme Court that, “After an Act is declared ultra vires…decision is taken bona fide by the government in accordance with the rules framed under that Act prior to such declaration would be saved by the (de facto) doctrine.”

There are many examples of the application of the de facto doctrine in other countries – the application of the doctrine in countries like Argentina, Iraq, Chile along with the examples found in the USSR regime are particularly interesting.

Conclusion

With all due respect to the judges of the apex court, I believe that by not applying the de facto doctrine, the judiciary somewhat destabilized the other two branches of the state, i.e. Parliament and the executive, and was responsible for spreading confusion regarding important state matters. It is perplexing to witness that the judiciary which has always applied the de facto doctrine in matters which have possible serious implications, in this particular case opted to apply the de jure doctrine – especially in a time when Pakistan is witnessing a subtle type of anarchy because of a rift between the disqualified Nawaz and the judiciary. In Lorant (cited above) the decision of members of the vestry was being questioned and it was given protection because in the opinion of Lord Truro, the application of a de jure doctrine would have had effects of the ‘most destructive kind’. But the judges of the Supreme Court of Pakistan failed to acknowledge the fallout in a situation where the stakes were much greater. The reason for this deviated course can be explained by two possible explanations:

  • Either judges were unaware of the effect of the application of the de jure doctrine in the circumstances, or
  • They acted in this way on purpose to send a message to the ex-premier who these days is expressing strong contemptuous remarks against the judiciary whenever he speaks. Whatever the reason, the judiciary should be cautious while pursuing such matters, especially considering the fact that military rule covers a large portion of Pakistan’s history.

 

The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any organization with which he might be associated.

Shayan e Shahid

The writer is a practising lawyer in Pakistan and serves as an Associate at Law Concern and Partner at J&S Law Associates.



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