Questions after the judgement

OUT of necessary respect for the Supreme Court and abundant caution in a matter where a hasty or premature assessment could trigger controversy, the initial response by sensible and responsible quarters to the Panama Papers judgement was to emphasise the need for immediate political and legal acceptance of the court’s orders.
Now that the short but final judgement has been analysed by the legal community, the political class and the citizenry in detail, the implications of it for politics in Pakistan need to be forthrightly addressed.

The consensus in expert and independent circles is twofold and clear: Nawaz Sharif has been stripped of the prime ministership on troublingly narrow legal grounds and the judgement has the undesirable potential to upend the democratic process in the country.

In the circumstances, Chief Justice Saqib Nisar ought to consider, following an appropriate petition, convening the full court to review the five-member bench’s final judgement in the Panama Papers case.

If the democratic project is to be sustained and strengthened, the rules of the system must be clear, fair and transparent. It had been hoped that the Supreme Court would deliver a well-argued and well-reasoned judgement that would create a desirable and easily implementable legal precedent. Instead, the one that now holds sway in the application of disqualification criteria for elected officials is staggeringly wide and could become the source of chaos in the parliamentary realm.

This newspaper called for Mr Sharif’s temporary resignation after the JIT report was submitted to the Supreme Court and has consistently argued that Mr Sharif and his family submit to accountability first in the Panama Papers matter. But Mr Sharif, both as a citizen and as the legitimately elected prime minister, had a justifiable expectation of fair and proportionate justice. That does not appear to be the case in the five-member bench’s final judgement and it has profound consequences for the future of the office of the prime minister and of parliament itself.

The Supreme Court itself can determine the scope of the review, but some of the questions that ought to be addressed are clear. Is, for example, the definition of receivables given in the judgement the only interpretation allowed under the law? What is the scope of Article 62(1)(f) and has it been properly determined by the bench? What constitutes a misdeclaration in a candidate’s nomination forms that can trigger disqualification?

Following Friday’s judgement it is not unreasonable to suggest that all parliamentarians face at least some uncertainty about their legitimate qualifications to hold public office. Whatever the legitimate concerns about many parliamentarians’ lack of financial disclosure, a situation in which one hundred per cent of elected representatives are vulnerable to disqualification is surely too destabilising a situation for a democratic order.

The full Supreme Court must urgently step in and provide some necessary clarity.

Published in Dawn, July 30th, 2017

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