- The long and short of the law
The opinions in both Imran Khan and Jahangir Tareen’s cases were authored by Chief Justice Saqib Nisar. They will go a long way in influencing the jurisprudence under Article 62 of the Constitution. There are several aspects of the opinions that merit a comment here.
In the case of Imran Khan, the Court, on two important issues, respected the principles of comity. On issues of PTI being; (i) foreign aided party and (ii) received contributions and donations from foreigners, the Supreme Court deferred to Federal Government and Election Commission of Pakistan who have the mandate under the Constitution to make such declarations and determinations. The opinion read: “We do not find it proper to bypass the above mandate of law making it redundant and nugatory, by exercising our jurisdiction in terms of Article 184(3) of the Constitution….”. These two issues are alive and now rest with the executive. This approach is consistent with the life-long inclinations of the Chief Justice on the Bench who has in the past cautioned against turning our democracy into a judicial autocracy!
The Court on the issue of Khan’s assets undertook unprecedented scrutiny before dismissing the petition. On the issue of Niazi Services Ltd., the Court, disregarding the popular uninformed debate on offshore companies, concluded: “Accordingly, we do not find that failure by Respondent [Imran Khan] to mention a trust vehicle company as his asset in which he neither held any shares nor any office in the management, can tantamount to misdeclaration or concealment constituting an act of dishonesty. This is especially so when we are not convinced of any benefit, financial or otherwise that was or could be derived by the Respondent on account of such non-disclosure.” On the issue of disqualification under Article 62 of the Constitution, the Court clarified and limited the rule in Nawaz Shareef’s case (PLD 2017 SC 265): “There is no involvement here of public property or funds, abuse of public office and authority, corruption or breach of fiduciary duty.”
While the Supreme Court relies on Article 187 to do complete justice; a power not conferred on High Courts, it doesn’t keep them from delving into disputed questions of fact.
The Court was mindful of the floodgates this petition could open. It observes: “The public outrage that followed in Pakistan [after Panama Papers] was spearheaded by [Imran Khan].” Therefore, “as public office holder [he] should withstand the same rigour and test of scrutiny and accountability.” The Court stated, in all other cases, the proper forum in matters of disqualification of the parliamentarian is the Election Tribunal or the High Courts. Then what justifies the assumption of jurisdiction in Tareen’s case?
The opinion on merits in the Tareen’s case is persuasive as students of law have come to expect of the Chief Justice and it enunciates principles of law on; the scope of quo warranto petitions against the parliamentarians, treatment of qualified admissions under Article 36 of Qanoon-e-Shahadat Order, 1984, piercing the veil of incorporation, three certainties of the trust, import and significance of the words; “without prejudice” in correspondences. The opinion is also deferential in part. It notes that Tareen was involved in insider trading at the time he was a federal minister but “a settlement… was effected to save [him]”. The Court, while taking into account the time lapsed (about ten years), did not disqualify Tareen on that issue. But it doesn’t exonerate him of crime.
The rule in Tareen’s case can easily be reconciled with Shareef’s. The Court disqualified Tareen on “blatant” and “shocking untrue statement” that is not expected “from an honest person” and since “SVL or Hyde House was never transferred to any trust by [him], thus, it is his asset which he has failed to declare in his nomination papers”. Shareef was also disqualified on “having failed to disclose his un-withdrawn receivables constituting assets from Capital FZE Jebel Ali, UAE in his nomination papers filed for the General Elections held in 2013 … and having furnished a false declaration under solemn affirmation.”
The Supreme Court in these three historic cases has employed a liberal approach in analyzing the disputed facts, an area traditionally reserved for the adversarial proceedings of the trial court and not for inquisitorial proceedings under Constitutional jurisdiction. This is a consistent trend post-2007. The Supreme Court has even held that it can record evidence in exceptional circumstances (PLD 2007 SC 642). In Shareef’s case, the Court reiterated the view: “In order to do complete justice, there is no bar on the power of this Court to record evidence in appropriate cases and pass such orders as may be necessary.”
While the Supreme Court relies on Article 187 to do complete justice; a power not conferred on High Courts, it doesn’t keep them from delving into disputed questions of fact. Given the judicial trend and distortions created by it, this area needs a law reform. In the UK, reforms were made in the judicial review in 1978. The reforms, inter alia, provided for cross-examination on the basis of sworn statements in exceptional circumstances. We may consider introducing such reforms in our Constitutional jurisdictions.
Going forward, principles of justiciability, deference and comity must be accorded due weight before the assumption of jurisdiction and in the opinions of the Court. It is legitimately expected of our superior Courts to exercise judicial restraint where it is impossible for a court to independently resolve the case without expressing a lack of respect for a coordinate branch or political process. But when there is instance after instance of regulatory capture and abuse of executive power, any criticism on lack of restraint is misplaced and bereft of context. As Lord Steyn in R (Daly) v Home Secretary [2001] said: “In law, context is everything.”
