The Panama Verdict – Sharpening of the Sword

The Panama Verdict – Sharpening of the Sword

On July 28th 2017, a three-member special bench of the Supreme Court announced its judgment, followed by a final order of the five-member larger bench, in the infamous Panama Papers Case.

The Prime Minister of Pakistan was declared dishonest and was disqualified from being a member of the National Assembly under Article 62(1)f of the Constitution.

The judgment was always politically controversial even before it was authored and announced. Unfortunately, it has also become a legal controversy, at the center of which lies the all mighty and all powerful Article 62(1)(f).

The late General Zia, in his attempted ‘Islamization’ of the Constitution and Pakistan, added clause (f) along-with four other Islam-ifying clauses to Article 62, making it an essential prerequisite for any person aspiring for election as a Member of the National Assembly to pass the test of being “sagacious”, “righteous”, “non-profligate”, “sadiq” and “ameen”. General Zia’s Islamization of other laws has haunted the country ever since. Thirty-two years later, his Islamization of Article 62 has come to haunt his own mentee.

I, however, find the debate against Article 62(1)(f) quite empty and hollow. It is true that analysts, judges and politicians of the highest caliber have opined on the impracticability of such stringent conditions on one’s character and it is also true that the clause made its way into the Constitution in an undemocratic regime and thus did not represent the true will of the people. But the question is, is Article 62(1)(f) a living and breathing part of our Constitution? Has it been removed by any of the subsequent “democratic” regimes? The answers are Yes, and No, respectively.

As long as any provision is a part of my country’s supreme law, I would like it to be enforced, please. It is the Supreme Court’s duty to give effect to the Constitution. It is the Parliament’s job to give to the Supreme Court a Constitution to go by. The argument that a statute or any provision of a statute is not practicable or does not represent the Parliament’s will, yet remains a part of the legislated law, is absurd and without merit. Thus, in my humble opinion, the Supreme Court giving effect to Article 62(1)(f), regardless of the floodgates it opens, is perfectly legal and in line with the Supreme Court’s duty to uphold and abide by the Constitution of Pakistan.

The next objection raised in the politico-legal controversy was that the Supreme cannot, and ought not, assume the role of a trial court under Article 184(3). The three-member special bench has stood its ground with regard to its original opinion that the Supreme Court cannot itself declare the Prime Minister corrupt and convict/disqualify him, or any parliamentarian, on said grounds acting under Article 184(3) of the Constitution. They have thus ordered that the allegations arising out of the Panama Papers and the consequent petitions be investigated, and the accused be tried, under Section 9(a)(v) and 14(C) of the National Accountability Ordinance (NAO). They have maintained that under 184(3), without a proper trial entailing examination, cross examination, exhibition and scrutiny of documents, no one can be convicted or declared to be dishonest. This was their original view taken in the majority judgment pronounced on the April 20th 2017 and this is their view now. It was the dissenting judges who held that the matter does not involve intricate questions of fact as those framed by the three honorable judges, instead, the question was whether the Prime Minister had been dishonest in his speeches and statements. The dissenting judges believed that there was enough material before them to conclude that Respondent No.1, the Prime Minister had been dishonest and thus stood disqualified under Article 62(1)(f) of the Constitution and Section 99(1)(f) of the Representation of People’s Act (ROPA). The other three judges, in the April 20th judgment, however, held that the material available was neither sufficient nor conclusive and thus recommended the formation of a joint investigation team (JIT) to first probe into intricate questions of fact.

So why has the Prime Minister been declared dishonest and disqualified by the three-member bench now, and that too unanimously? What new material surfaced, which was not available then?

The Prime Minister has not been disqualified on the basis of any revelation in the Panama Papers, nor for any allegation contained in the Petitions, as those were held to be subject to further scrutiny and trial in the unanimous judgment. The Prime Minister has instead been disqualified on his own admission.

During the course of its investigations into the Panama Papers, the JIT discovered that Mr. Muhammad Nawaz Sharif was the Chair of Capital FZE Jebel Ali, a Dubai based company. And that a salary of 10,000 dirhams was receivable by him against that position. This, like all other matters now referred to the National Accountability Bureau (NAB), was an allegation contained in the JIT’s report. However, when confronted by the special bench during post JIT report hearing, the Prime Minister’s counsel – acting on the Prime Minister’s behalf and instructions – admitted that the Prime Minister was in fact Chair of Capital FZE during that period and that he was entitled to the said salary, however he did not withdraw it. Thus this allegation became an admitted and established fact, slipping out of the sack that contained all unproven and denied allegations which have been sent for a proper probe and trial. As per our laws of evidence contained in the Qanun e Shahadat Order, any allegation that is admitted need not be proven.

It is interesting – unfortunate for the now disqualified Prime Minister – that this small admission has cost him so gravely. Had the admission not been made, being Chair of Capital FZE and any salary in that regard would also have been referred to NAB for proper inquiry and trial.

Now coming to the strictly legal controversy: has the Supreme Court gone too far in applying the criteria set by the words “sadiq” and “ameen”? The Prime Minister has been disqualified for not declaring an asset that was not acquired or received when the declaration was due. As per the Supreme Court’s own judgment, the word “asset” has not been defined in any statute including the Representation of People’s Act. So there was no law that qualified any ‘receivable’ as an asset. The ambiguity has only been elucidated upon now in the honorable Court’s judgment. So was any receivable an asset in 2013 in the absence of any law or precedent declaring it so? Can the precedent set today be given retrospective effect? The contention makes sense in as much as the absence of a clear definition of the word “asset” is concerned. Was the Prime Minister dishonest by virtue of not declaring something he could not know he was supposed to declare? Shouldn’t this qualify as an honest mistake instead of a dishonest omission? These are questions that the Supreme Court has, by implication, answered in the negative and answered definitively. A provision that was already considered too stringent to be practicable as it required the highest standards of honesty, has now gone up a notch or two. As per this precedent, an unintentional mistake may qualify as a dishonest act and will be sufficient to disqualify anyone from being elected as a member of the legislative assembly.

The sword that hung over politicians’ heads by a dictator, kept in place by the politicians themselves, is now sharper and heavier. The rope that holds it is weaker and thinner.

Is this irregular? Apparently yes. Is it illegal? Absolutely not, since this definition and scope has been given to a provision of the supreme law of the land by the Supreme Court of the country. Thus, it is now a law and has to be abided by and enforced. If it turns out to be an erroneous interpretation, it will be changed and altered by subsequent precedents or legislation. This is the evolution of the systems that we so dearly dreamed of, and now seem petrified by.

Edited version: 30 July 2017 

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

Zafar Zulqarnain Sahi

Author: Zafar Zulqarnain Sahi

The writer is a lawyer by profession. He is a Gold Medalist in LLB from Punjab University and has a LLM degree from University of Warwick, UK. He is also a former Member Provincial Assembly of Punjab (2008-2013).