A prima facie error of judgment was floating on the surface in the July 28, 2017 judgment which disqualified yet another Prime Minister and was based on merely one point that though Nawaz Sharif was NOT receiving salary from a UAE company but mere mention of salary on appointment letter renders it “receivable”, thus an asset. As it was not declared, so he is not Sadiq and Ameen and hence disqualified. The judgment is first of its kind in whole history of Pakistan where a legislator has been disqualified because of a disputed interpretation of one point of ‘mis-declaration of asset’ and that too by using article 62(1)(f) of the constitution, which means life time disqualification. The judgment by all means can be declared as a black judgment of history of jurisprudence and will always be termed as ‘a bad precedent’.
All financial experts agree that there is no need of any declaration if there are no financial benefits and most importantly no question even arises if there is a written declaration of taking no financial benefit on this count. In its judgment, the apex court itself declared that there is no mention of definition of “asset” in the Representation of the People Act, 1976 (ROPA) and thus definition of ‘asset’ was understood from different dictionaries. It is worth mentioning here that there was a mention of intention to consider ‘disqualification of the Prime Minister’ in the order of the court in April 20 judgment though this ‘order of the court’ had not even a slightest mention of FZE Company or any allegation of mis-declaration at that time. The fishing expedition of JIT also failed to come up with any conclusive evidence regarding any allegation, and thus no final declaration regarding any allegation was given in Friday’s judgment.
It seems that former Prime Minister Nawaz was to be disqualified in any case. There was nothing against Nawaz Sharif in petitions as well as in the JIT report establishing any instance of corruption, misuse of authority or any wrongdoing. The point of definition of ‘asset’ and ‘receivable’ is unnecessarily stretched by the honourable judges to oust the democratically elected Prime Minister by tens of millions of voters and that too under allegation of corruption. The people of Pakistan have elected Muhammad Nawaz Sharif as the Prime Minister of Pakistan for three times and terming him as dishonest (‘not a sadiq and ameen’) without any corruption allegation can be termed as a judgment against the collective wisdom of the Pakistani nation and millions of voters. Whatever is the definition of word ‘asset’ in the law dictionaries, this interpretation is clearly against the spirit of the income tax and election laws under which declarations are required.
It is important that in all the cases of mis-declaration of assets in recent past, the legislators were de-seated under section 12 and 99 of ROPA by the Supreme Court and they were allowed to re-contest the elections though there was clear non-declaration of known assets and accused even admitted having those undeclared assets in courts. In none of these cases, article 62 (1) (f) was invoked and none of them was declared as not being ‘sadiq and ameen’. Declaring any legislator being not ‘sadiq and ameen’ mean a disqualification for the life time. Supreme Court had only de-seated legislatures in cases of mis-declaration of assets and they were free to re-contest elections despite the fact they actually failed to declare some assets, a fact which was also proved in court of law. However, in case of former Prime Minister Nawaz Sharif, there was no asset which was not declared and apex court also admitted the position that salary was not taken but it declared that as appointment letter mentions salary, so even not-withdrawn salary becomes receivable, hence an asset which was not declared. Clearly, it was out of question that a person declaring tens of millions of money in his declaration, will try to hide few million rupees. And in this case of disputed interpretation of a minute point, Supreme Court instead of de-seating the former Prime Minister went to the extent of disqualifying him using section 99 of ROPA and article 62(1)(f) of the constitution hence terming him ‘dishonest’ which means he is disqualified for his life time. In all fairness, it can be said that the bias was too evident not to appear on the surface.
The article 62(1) (f) has been invoked in past in some judgments and those declared ‘dishonest’ under it are facing life time disqualification. However, that use of 62(1)(f) was in different cases like in fake degree, verified as fake by concerned university, and in dual nationality cases which are entirely different. 62(1) (f) was never invoked in a judgment relating to case of mis-declaration.
According to April 20 judgment note by Honourable Justice Sheikh Azmat Saeed, article 62(1) (f) could not be allowed to be used as a tool for political engineering by the Supreme Court, nor should it arrogate to itself the power to vet candidates on moral grounds. “Under our constitutional dispensation, Pakistan is to be governed by the representatives chosen by the people and not chosen by any institution or a few individuals,” Justice Sheikh Azmat Saeed had written in his note in the April 20 judgment. Not only this Justice Ejaz Afzal Khan in the majority judgment of April 20 held that the court did not feel inclined to arrogate to itself a power or exercise a jurisdiction which had not been conferred on it by any act of parliament or even by Article 184(3) of the Constitution, which deals with the enforcement of fundamental rights. Both the respected judges in their April 20 judgment were of the view that article 62 and 63 cannot be invoked while exercising the jurisdiction under article 184(3) of the constitution. Both the honourable judges changed their opinion within 99 days without explaining their previous position.
The judgements rendered by the apex court in Maulvi Tameezuddine Case, in Governor General Reference, in Dosso Case (legitimizing Ayub Khan Martial Law), delaying judgment in Asma Jilani case, Nusrat Bhutto Case (legitimizing Zia Martial Law), hanging of Zulfiqar Ali Bhutto, Benazir Bhutto Case (for restoration of assemblies dissolved in 1990), Benazir Bhutto Case (for restoration of assemblies dissolved in 1996), Zafar Ali Shah case, Arslan Iftikhar case and disqualification of Syed Youssaf Raza Gilani case are considered black judgments of Pakistan’s judicial history. And Friday judgment on the point of disqualification of the former Prime Minister has only added yet another black judgment to this long and continuing list. There is no doubt that there was great pressure but facing the pressures, sticking to the law and the constitution and rendering judgments strictly in accordance with the law and the constitution is the duty of the judiciary. We all have to accept this verdict and wait for the judgment of history.