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Lost in interpretation

25 117 110

The good news for students of law and the constitution, struggling to find consistency and coherence in the Supreme Court’s recent jurisprudence on disqualification of parliamentarians, is that we are not alone.

Justice Faez Isa’s opinion in the Sheikh Rasheed disqualification matter and the Islamabad High Court’s full bench ruling disqualifying Khawaja Asif with a ‘heavy heart’, believing it was applying the law as laid down by the SC only to be overturned later, suggest that some on the bench are also struggling.

Starting with disqualification cases employing Article 184(3) during CJ Iftikhar Chaudhry’s time, the scope of authority vested in the SC and the manner of its exercise have probably been matters of more significance for students of law than the eligibility or desirability of a particular MP to serve as a legislator. In his minority opinion, Justice Isa has cogently articulated the issues that bear on the minds of many who are interested in discerning the text and spirit of our constitution and its scheme of separation of powers.

A legal system presumes that if the law is sufficiently clear, citizens (or their majority) will order their lives in accordance with it. If any disputes arise, courts act as arbiters amongst citizens or between citizens and the state. As the ultimate court, the SC has the final word on what the constitution means. The law it lays down is binding on everyone. Thus, the SC is responsible for ensuring legal certainty, without which rule of law and rule of men are hardly distinguishable. It is here that SC’s recent jurisprudence is wanting.

In his majority opinion, Justice Azmat Saeed’s argues that, “in our legal system, law evolves brick by brick and from judgment to judgment. If the judgments pertaining to electoral disputes rendered by this court are carefully read, objectively understood and the ratio thereof correctly identified, it would be clear and obvious that principles of law, in this behalf, appear to have been settled and consistently applied to the facts of each individual case.” This is how it is meant to be. But is this how it is?

Justice Saeed himself identifies the ‘test’ prescribed and applied by the SC in the disqualification cases as follows: “Where a misstatement or an inaccuracy or concealment is established, the candidate/member would always have the opportunity to offer an explanation. Such explanation may or may not be found acceptable.” It doesn’t say if every inaccuracy or misstatement will attract disqualification proceedings or only material misstatements, and if so what test of materiality will guide the courts.

It doesn’t say if penalty of disqualification requires mens rea. If an omission isn’t a strict liability offense, as Justice Saeed has ruled, and an MP has the right to explain himself, how will the SC determine the validity of an explanation without trial (guaranteed under Article 10A)? If there is no objective standard for which omission attracts disqualification and which doesn’t, and what sort of explanation is acceptable and what isn’t, won’t the fate of MPs hang on subjective opinions of judges on the bench?

Since Nawaz Sharif’s disqualification, the SC has been at pains to explain what it did and why, and how it has been doing the same thing in subsequent cases (without much success dare one say). In Panama I, the reasoning of the judges who disqualified NS in round one was most candid. Based on what they heard, they formed a subjective view that NS was untruthful, and said so. Panama II’s reasoning was unconvincing for its foundation wasn’t the London flats or dishonesty but an omission that seemed trivial.

The SC has since been trying to carve objective tests out of its inherently subjective determination in the Panama case, which has created further confusion. Four major disqualification cases later, all basic questions requiring interpretation of constitutional text and scheme of separation of powers that existed at the time of Panama still remain unanswered. Justice Isa’s minority opinion is the latest reminder that, by pushing them under the carpet, the issues won’t go away. He........

© The News International