Malik M Ashraf,
THE political landscape of the country at present is marred by an ambience of confusion and uncertainty triggered by the controversial verdict in the Panama case at a time when it needed political stability the most in view of the formidable challenges confronting it. The situation obtaining in the country in the opinion of the legal and constitutional experts is a sequel to the judicial activism which has also made the judiciary controversial itself. I remember Justice retired Sardar Muhammad Raza, now the Chief Election Commissioner in an article widely published in the media referring to the Judiciary under Iftikhar Muhammad Chaurdy observed that it was not independent as expected. Unfortunately that trend still continues and in its enthusiasm to act as ‘ saviour’ of the nation it has tried to overlord Parliament and the Executive. The writ filed by Imran Khan and other political parties in the SC seeking disqualification of the Prime Minister Nawaz Sharif under Article 62 and 62 of the constitution undoubtedly was a politically motivated attempt to exploit the infamous provisions of the constitution. One thing which baffles the mind is that the SC verdict was not based on the prayers made by the petitioners, rather the court found a reason on its own to disqualify the Prime Minister. It is this aspect which continues to draw flak from the legal and constitutional experts as well as the masses and the permeating perception is that the Judiciary by delivering this controversial verdict had not added to its prestige.
The constitutional experts opine that the SC failed to exercise restraint and also violated the internationally recognized principles of jurisprudence in this particular case. They also are of the view that SC was not a court of trial and invoking article 184(3) of the constitution to accept the petitions in the Panama case was also not justifiable as this clause pertained to issues of public interest in regards to the violation of the fundamental rights. Panama was a case of criminal nature and no question of violation of fundamental rights was involved. The reaction by the PML (N) over the decision and the apprehensions being expressed by its leadership in regards to the likely outcome of the NAB references is not without cogent reasons. The remarks by an honourable judge of the SC against Sharif family and the government during the hearing of Panama case and the ones made in the judgment on the review petition were surly unwarranted and did not come up to the judicial standards. The observations in the review petition clearly smacked of anger on the part of the judges.
The politicians as a class have actually axed their own feet by invoking articles 62 and 63. Today they might be rejoicing their victory over a political opponent whom they could not defeat through the ballot box and the decision might assuage their wishes but what they fail to understand is that the verdict has added to the litany of vulnerabilities of the politicians. Tomorrow they could also be the victim of this development. Imran Khan and Jehangir Tareen might also face the same fate whose similar cases are being heard by the Supreme Court.
One thing is certain that the decision of the SC would have very serious political repercussions. The Judiciary is considered as the most sanctimonious pillar of the state and its decisions in cases of national importance do have long lasting effects, like the ones validating martial laws and authorizing the dictators to amend the constitution. The judges were right to say that the decision in the Panama case would be remembered for centuries. It would indeed be remembered though for not so auspicious reasons. In fact by accepting the political case like Panama and then giving its verdict on it under Article 62 and 63 the Supreme Court has opened a Pandora box. We might see the SC struggling to cope with references that would be filed by political leaders and parties against their opponents invoking these articles as well as by citizens against anybody whom they thought was not ‘Sadiq and Ameen’ in terms of those provisions of the constitution.
Even the SC might not find it convenient to come up with a comprehensive definition of ‘Sadiq and Ameen’. My considered view after reading Articles 62 and 63 of the constitution is that as per their spirit only prophets and angles could come up to the standards enunciated in them. It is simply out of question to find any individual or a group of individuals who can be characterized as ‘Sadiq and Ameen’ as envisaged in these articles, including judges, generals and politicians. Can any one of Judges of honourbale SC and those who adjudicated this case stand up and say under oath that they were Sadiq and Ameen as defined in article 62 and 63? And do judges believe that those who filed petitions themselves qualified to be Sadiq and Ameen? It is pertinent to point out that in Ishaq Khan Khakwani case (PLD) 2015 SC 275) while dismissing the appeal seeking disqualification of Nawaz Sharif, Justice Khosa added an additional note reiterating that many provisions of Article 62 were not amenable to legally enforceable standards. Referring to Article 62(1)(f) he opined. “It is proverbial that Devil himself knoweth not the intention of man. So why to have such requirements in the law, nay the constitution, which cannot even be defined, not to talk of proof”.
— The writer is freelance columnist based in Islamabad.
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Malik M Ashraf,