High handedness of the higher judiciary

• More was expected of the Supreme Court

If anything were declared the bane of Pakistan, it would be the yearning for populism by non-elected institutions including the Supreme Court (SC). What was not apparent in the July 28 judgment is now clear in the review judgment of November 7 on the Panama Papers case, both being public documents now. The SC rejected the review petition filed by former prime minister Nawaz Sharif. Through the review judgment, the SC once again assumed the authority of interpreting the law in its own desired way.

In the review judgment of November 7, there are two disquieting contradictions to notice. First, on the one hand, it says that “Nawaz Sharif has been neck deep in business and politics ever since early ‘80s so it is unbelievable that he did not understand the simple principle of accounting that his accrued and accumulated salary of six and a half years was his asset and liability of the company he was an employee of.” Here the SC acknowledges that it applied the principle of accounting on Sharif’s case. However, on the other hand, the review judgment says that “The judges also ruled that the bench… accepted whatever he [Nawaz Sharif] stated about the work permit, his employment contract with Capital FZE Jabal Ali, his position as chairman of the company’s board and his entitlement to salary which according to him was not withdrawn.” Here, the SC acknowledges that the case of Nawaz was of a salaried employee and not of a company.

It is known that “asset” can be defined in two ways: first, for income tax (employee) purposes; and second, for accounts (employer) purposes. It is also known that “asset” sprouting from “salary” can be defined in only one way: for income tax (employee) purposes. When Sharif was a salaried employee of a company, as acknowledged by the SC itself, the accounting principle meant for a company was not applicable to him. The SC has again failed to understand a simple point that, under the Representation of the People Act (ROPA) 1976, the nomination papers required from all candidates to declare their income, and assets and liabilities, for last three tax years, in an annexure (which is a tax record), were as per the Income Tax Ordinance 2001, and not as per any accounts principle. In the elections, not companies but individual taxpayers take part. The annexure section of the ROPA refers the candidates to the Income Tax Ordinance of 2001 and not to any accounts principle or procedure. The SC could have overlooked the Income Tax Ordinance 2001 if the Ordinance were devoid of requisite definitions. However, this was not the case. The Ordinance had been meeting the needs of the Election Commission and the ROPA, and this is how Nawaz Sharif did not lie on oath about his asset declaration to violate the terms of Section 12 (2) (f) of the ROPA. Instead, he followed the prevalent law.

It is obvious now that, and as shown in the afore-quoted sentences, the SC considered Nawaz Sharif’s case under the accounts principle. However, the SC has not given the reason for relying on the ROPA to judge a candidate under the accountancy procedure and not under the Income Tax Ordinance 2001. In this regard, in its review judgment, the SC has cited no legal provision allowing it to do so. Similarly, the SC has cited no case law, local or foreign, as a precedent. Interestingly, when the SC says, “The facts about disqualification of Nawaz Sharif as prime minister were uncontroversial,” the SC fails to rely on any unassailable proof other than definitions inaccurately selected to serve the intent to disqualify him and by inexactly declaring certain statements as his confession statements. If law were so difficult to interpret and understand! Hence, when the SC says, “It was salary of the past six and a half years which had already accrued and accumulated. There is nothing in oral or written form, from July 2006 to January 2013 as could stop the accrual and accumulation of salary or prevent it from becoming an asset,” the Income Tax Ordinance 2001 contravenes this stance. Section 13 of the Ordinance says that no receivable salary falls into the ambit of accountancy and that no receivable salary is an asset whether it is confessed by anyone or not. The SC needs to read Section 13 (and the Income Tax Ordinance) once again.

The second contradiction is that, on the one hand, in the review judgment, the SC says, “The mere fact that we did not agree with the petitioner when he stated that his un-withdrawn salary is not an asset would not amount to denial of a fair chance to vindicate his position.” That is, Nawaz Sharif was given a chance of fair trial. However, on the other hand, the SC says, “[T]he honourable Court points out that this is not the first time that an elected member has been disqualified, without a trial, in exercise of Article 184 (3) powers.” This is where the SC has acknowledged and justified denial of a trial to Nawaz Sharif despite the fact that the nature of the three cases quoted by the SC as precedents of ‘without a trial’ are entirely different from the case of Nawaz Sharif. Interestingly, here the SC was quick to provide precedents but not when asked about declaring receivable salary an asset. Nevertheless, the SC is saying that once wrong is committed, it can be generalised to anyone. Unfortunately, instead of discouraging the practice of punishing ‘without a trial,’ the SC has solidified the practice. This is how the SC has assumed the posture of absolute in authority and this is how the SC has become a source of disruption in society. A politician elected by people has been dislodged without a trial is a serious offence committed by the SC.

Generally speaking, the review judgment is replete with contents more political than legal. It should have been speaking legally and not politically. In fact, through the review judgment, the SC jumped into politics by saying “the ousted prime minister tried to fool the court and people, both inside and outside of parliament, and never came up before the court with the whole truth”. Interestingly, what was happening inside the SC was being reported by the media and was known publicly including the WhatsApp saga of the trail. However, it is not known what authority the SC exercised and what measure the SC used to fathom whether or not the ousted prime minister was befooling people. This statement is the second one making the SC a source of disruption in society. None asked the SC whether or not Nawaz Sharif fooled people. The prerogative to judge whether Sharif fooled people or not lies with the people not with the SC. In fact, the SC cannot pass this judgment. The SC has tried to infringe upon the rights of people to judge and has tried to impose its thinking on people.

In short, a much higher level of intellect and understanding of law was expected from the SC but it could not meet the expectations. Further, the higher judiciary, which was supposed to hold high legal and judicial ethos personified in its legal judgment, has failed to convince any avid reader of law of the soundness of the judgments, both July 28 and November 7.