Supreme Court of Pakistan decision

Time and People's perception are going to be the best judge of this decision

Supreme Court of Pakistan decision

Muhammad Arif :

In a verdict in Panama Leaks scandal announced on 20th April 2017, Supreme Court of Pakistan has ordered constitution of Joint Investigation Team (JIT).  JIT will be made under the supervision of Supreme Court of Pakistan.

Justice Asif Saeed Khosa announced the judgment. The decision consists of 540 pages. The decision announced on 3:2 majority. Three judges opposed the disqualification of Prime Minister Mian Muhammad Nawaz Sharif. While two honorable judges wrote opposite note of disqualification of Prime Minister Mian Muhamamd Nawaz Sharif. It has been said in the decision that how the payment made was transferred to Qatar requires further investigations. Moreover, NAB Chairman was non-consensual regarding the investigations. He said that Chairman NAB was not ready to carry out the investigations and he failed to do his job. DG FIA was unsuccessful while investigating the white-collar crime. For this reason, Supreme Court has announced to form Joint Investigation Team (JIT). PM Nawaz Sharif, Hassan Nawaz and Hussain Nawaz will be presented in front of JIT and reports will be submitted to SC every fortnight. JIT will consist of members of FIA, FBR, SECP, IB, ISI and MI.

This decision came after 36 hearings onward 1st Nov 2016. Meanwhile Justice Jamali retired as Chief Justice of Pakistan and Justice Saqib Nisar took over as Chief Justice. He formed another bench on 31 December 2016. It was being viewed that bench would probably move towards forming a commission for investigation but a judge's comment created sensation by saying that this decision would be remembered for centuries.

Justice Gulzar and Justice Asif Saeed Khosa said that PM Nawaz Sharif should be disqualified as he does not lie in the category of 'Sadiq' and 'Ameen' by the Constitution. Justice Asif Saeed Khosa even quoted from the Novel "God Father" that every wealth has some crime behind it. It was thought that as per observation of Justice Khosa the Panama Leaks case starting from sitting PM would unfold every crime hidden behind Zardari, Imran Khan, Maulana Fazlur Rehman, Wali Khan and MQM leaders who hold immense wealth. 

Commenting on this decision Aitizaz Ahsan has said that in this he sees the color of law of necessity.

Chairman Pakistan Tehreek-e-Insaf (PTI) Imran Ahmad Khan left the Supreme Court of Pakistan without talking to media. It is being seen as disappointment of PTI's chief. While President Pakistan Awami Muslim League Shaikh Rasheed Ahmad also left the court in the same way. Later they demanded resignation of PM which they are doing for the last 4 years. Asif Zardari has also demanded resignation of PM. On the contrary after listening to the judgment the Muslim League leaders talked to media persons and termed it good. They criticized the PTI and its allies. 

Forward going this decision is going to put an impact on political arena as JITs in any case in Pakistan have not been proved successful. Further in the coming elections PML-N, PPP and PTI would participate without making any alliance. PML-N would like to make an alliance with PTI but Imran Khan would not approve it. PPP and Maulana Fazlur Rehman would like to have alliance with PML-N but Nawaz Shareef would not approve it. It is also pertinent that delay in investigation can cause benefit to PML-N, as in current environment elections under governments at the top always goes in their favor. So at least in the coming horizon people of Pakistan have to wait to get electricity, health facilities, education, clean water at least after 10 years i.e. 2027.

This is not new, as a brief history of Pakistan provides numerous examples of times when the judiciary played second fiddle to the forces that governed the state at the time. This brief history can perhaps begin to educate us on what went wrong in the past and what we can learn from our mistakes that we have not done so far. After partition in 1947, the need for state machinery was conspicuous by its absence. Less than fifty-percent of the vacancies in the judicial and executive branches of the government were occupied and most state departments remained under employed. The loss of Quaid-i-Azam and Liaquat Ali Khan further estranged any hope for 'state-building'. At this time, a stable political system was not yet established and as expected, a political vacuum set the stage for a tussle over power between the legislature and the executive. This proved disastrous for the growth of government institutions, especially the judiciary, which was merely used as a tool to exploit intergovernmental disputes between the executive and legislative authorities. As a result, the constitution - a document, supposedly safeguarded by the judiciary - was reduced in its worth to facilitate power bargains. Later, in 1954, because of lack of consensus between parliamentarians over the contents of the constitution, Governor Ghulam Muhammad dismissed the entire constituent assembly, and the Supreme Court upheld his decision under Chief Justice Muneer that we call now Moulvi Tameezuddin case decision. This decision in fact was the start of separation of East Pakistan culminating in 1971. The power of the executive remained at its apex during Ayub's tenure: a large number of former political leaders were barred from competing elections and more importantly, the National Assembly no longer had the power to remove a government it didn't have confidence in. Again, the judiciary complied.

In 1973, Bhutto promulgated a new constitution and became the 'all powerful' Prime Minister. He prescribed 114 articles of power to the federation; the legislature grew in size and the power of the executive branch was reduced. Three hundred and thirty-three senior bureaucrats were dismissed on false charges. In 1985, General Zia shifted power once more: he made the 8th constitutional amendment, changing Pakistan's political system from parliamentary to semi-presidential. The President was given the right to dissolve the National Assembly. Yet again, the judiciary complied. Before that the Nawaz government had undid the 8th amendment in 1997. The 13th amendment removed article 58(2) (b) from the constitution and withdrew the President's right to dissolve the National Assembly. Soon afterwards, the 14th amendment was passed which stripped the party of its power to remove its leader in case of 'no confidence'. Nawaz Sharif became a parliamentary dictator - there were no checks and balances left on the Prime Minister. 

In 2003, the 13th amendment was reversed. The President regained his power to dismiss the national assembly, but this time around it could only happen if approved by the Supreme Court. After years of misuse and neglect it appeared as if the judiciary was given its due power, but it was not. The fact that forty percent of judges refused to take the new oath at the time when Musharraf became President only further reveals judicial accountability to the ruling elite. Both, military as well as civilian governments of Pakistan have almost invariably maneuvered the judiciary to purchase legitimacy for their unlawful actions. Under borrowed legitimacy, military governments justify martial law at the cost of losing upright superior court Judges. Conversely, civilian governments have often used their clout to meet political exigencies and centralize power. Hence, the need for greater judicial independence cannot be denied. However, there is little or no consensus among scholars on the level of independence that should be prescribed to the judiciary. Given the obvious drawbacks of absolute independence, some scholars favor a minimum level of accountability to counter unfettered independence; accountability that seems more natural than imposed. This includes the implicit accountability judges have to the public: all courts are open and all judgments public, and therefore vulnerable to public scrutiny. Unfortunately, in Pakistan, the state system provides a sharp contrast to ideological theory. Here, judges known for unpopular judgments are marginalized and left with abridged tenures. Hence, accountability to political or military influence leaves little room for sound judgment. Despite recent efforts to make the judiciary more independent, justice is delivered at the same abysmal rate.

In October 2007, when his term of office was to expire, Musharaff wanted to contest for the second term and his eligibility to do so was challenged by one of the candidates and this matter came up before the Court in Wajihuddin v. the State (PLD 1996 SC 324). The issues involved in the said petition were two-fold: whether General Pervez Musharraf could contest the elections notwithstanding the constitutional restraint that no holder of public office could contest the elections unless a period of two years has elapsed between his retirement and the elections. General Musharraf was still holding the office of Chief of the Army Staff; whether the Assemblies whose term was to expire in two months time or the succeeding Assemblies would form the electoral college in view of Article 43 of the Constitution. The current Assemblies had elected the President for a term of five years which was about to expire. The arguments dragged on and when the polling day approached nearer, on the application of General Musharraf the Court instead of postponing the elections (as that would have changed the complexion of electoral college by efflux of time) allowed him to contest the elections with the rider that the Election Commission of Pakistan shall not notify the result till the final disposal of the pending petition. On the 2nd of November, 2007, the counsel for the petitioner who happened to be the President of Supreme Court Bar Association as well filed an application for issuance of a restraint order against respondent General Musharraf, Chief of the Army Staff, not to pass any order which had the effect of suspending the constitution or changing the composition of the court. The Court directed the office to put up the petition on the next working day which was 5th of November, 2007 as it was a long weekend and the Court was closed. In the afternoon of 3rd of November, 2007, the word went around in the Capital that martial law was being imposed. Apprehending this the Chief Justice of Pakistan with the available Judges in the Capital city Islamabad assembled in the afternoon (7-Members) and passed a restraining order which reads as follows:- "(i) Government of Pakistan, i.e. President and Prime Minister of Pakistan are restrained from undertaking any such action, which is contrary to Independence of Judiciary; (ii) No judge of the Supreme Court or the High Court's including Chief Justice (s) shall take oath under PCO or any other extra-Constitutional step; (iii) Chief of Army Staff, Corps Commanders, Staff Officers and all concerned of the Civil and Military Authorities are hereby restrained from acting on PCO which has been issued or from administering fresh oath to Chief Justice of Pakistan or Judges of Supreme Court and Chief Justice or Judges of the Provincial High Courts; (iv) They are also restrained to undertake any such action, which is contrary to independence of Judiciary. Any further appointment of the Chief Justice of Pakistan and Judges of the Supreme Court and Chief Justices of High Courts or Judges of Provinces under new development shall be unlawful and without jurisdiction. (v) Put up before full court on 5th November 2007." 

Notwithstanding the order passed General Musharraf, the then Chief of the Army Staff imposed the "State of Emergency", directed the constitution to be held in abeyance, issued a provisional constitutional order prescribing a special oath for judges of the superior courts with the stipulation that those who did not take oath would cease to hold office. Out of the 18 Judges, 13 did not take oath in the Supreme Court and out of 93 Judges from all over the four Provinces of the country, 61 did not take oath. Those who did not take oath were motivated by no reason other than defending the Constitution and upholding the Rule of Law. After the general elections in February 2008, the Constitution was restored and an elected Government revived. General Musharraf resigned, and there was a growing demand for restoration of the Judges who had been removed from the Constitutional Courts. In September 2008, several of the deposed Judges rejoined the Court, and finally, on 16 March 2009, the Chief Justice of Pakistan, Mr. Justice Iftikhar Muhammad Chaudhry, was re-instated by an executive order of the Prime Minister of Pakistan. 

Soon after his appointment as the Chief Justice of Pakistan (CJP) in 2005, Iftikhar Muhammad Chaudhry began to exercise the court's suo moto judicial review powers.  Suo moto, means "on its own motion." Beginning with the case of Darshan Masih vs The State (PLD 1990 SC 513), where the Supreme Court converted a telegram sent by bonded laborers into a writ petition, the Supreme Court rapidly fashioned for itself the power to take up cases of its own accord, based on letters or media reports. The court also relaxed other procedural requirements and public interest cases have increasingly come to acquire an inquisitorial or administrative inquiry mode rather than the strict adversarial model of adjudication that a common law system envisages. Articles 184 (3) and 199 of the Constitution of the Islamic Republic of Pakistan, 1973, vest judicial review powers in the Supreme Court and the High Courts, respectively. The majority of these powers are based upon the prerogative writs of certiorari, mandamus, prohibition and habeas corpus. Under Article 199, the High Court's? powers include the power to issue orders (i) directing any person performing "functions in connection with the affairs of the Federation, a Province or a local authority, to refrain from doing anything he is not permitted by law to do, or to do anything he is required by law to do; (ii) declaring that any act or proceeding … has been done or taken without lawful authority and is of no legal effect;" (iii) "directing that a person in custody … be brought before it so that the Court may satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner;" and (iv) "requiring a person … holding or purporting to hold a public office to show under what authority of law he claims to hold that office." In addition, Pakistani courts may, subject to certain restrictions, make an order giving "such directions to any person or authority … as may be appropriate for the enforcement of any of the Fundamental Rights" conferred by the Constitution. Although these powers were conferred on the courts in 1973, it is an Indian legal term, approximately equivalent to the English term, sua sponte. It is used, for example, where a government agency acts on its own cognizance, as in "the Commission took suo moto control over the matter." Following the Indian example, the Supreme Court of Pakistan had established in 1997 the power for itself to initiate "Public Interest Litigation" on its own accord under Article 184(3) of the Constitution. The Court could use this power to respond to individual or collective petitions for a wide range of issues that were not being resolved through legal or administrative means. However the frequency and the robustness with which the CJP exercised these powers were unprecedented. Many of these cases involved abuse of police powers, manipulation of legal processes by rural landed elites and corruption in the bureaucracy. These cases won the Chaudhry-led court increasing popularity amongst the populace as well as grudging respect amongst the legal fraternity.

Before that in November 2007, President Musharraf announced he would introduce a constitutional amendment to withdraw the Supreme Court's suo moto powers under the authority of his Provisional Constitutional Order (PCO). The Pakistani courts continue to use the power: it was reported that the Chief Justice of the Lahore High Court in September 2008 referred the matter of police releasing an accused to one of the justices for a hearing pursuant to the suo moto power. Two cases pursued by the Supreme Court in the later part of 2006 became a source of significant unease within government circles. First, the Supreme Court invalidated the privatization of the Pakistan Steel Mills, rendering a judgment that painted a grim picture of economic mismanagement, failure to abide by rules and patronage of businessmen implicated in securities fraud Watan Party vs Federation of Pakistan (Pakistan Steel Mill Privatization Case PLD 2006 SC 587 & 697). In the second case, the Supreme Court began to pursue habeas corpus petitions brought by the relatives of the "missing persons" who had allegedly been held by Pakistan's feared intelligence agencies without legal process. This case brought unwanted attention to the government's increasingly unpopular role in the US-led War on Terror and its prosecution of the campaign against separatists in the Balochistan province. 

Later, on 26 April 2012, Yousuf Raza Gillani sitting PM of PPP-led government was convicted on the charges of Contempt of Court, becoming Pakistan's first Prime Minister to be convicted while holding office. He was sentenced to be held in custody till the rising of court, a symbolic sentence lasting 30 seconds. The verdict was a short order and the full verdict of the court (over 70 pages had been reserved, and was handed over after few days' time). Gillani's lawyer Aitzaz Ahsan announced that the Prime Minister shall file an appeal against the Supreme Court's verdict once the full verdict is handed over, despite opposition parties' urgings. However, Gilani refused to step down.

On 28 May 2012, the issue of the disqualification of the Prime Minister was put to rest after a ruling by Speaker of the National Assembly Dr. Fehmida Mirza, to not to send the disqualification reference to the Election Commission of Pakistan.

Subsequently, the Prime Minister and his legal team decided not to file a petition against the conviction. Talking to the media representatives, the Prime Minister maintained that he acted to defend the Constitution of Pakistan, which according to the Supreme Court amounted to contempt of court.

On 24 May 2012, the People's Party directed the case to speaker of the National Assembly to review the case of Gillani, in light of the apex court's verdict. The speaker ruled out that, despite being convict, Gillani cannot be disqualified from the provisions of the paragraph Article 63(g) or either Article 63(h) of the Constitution. 

On 15 June, Gillani's lawyer senator Aitzaz Ahsan defended Speaker's move, and argued that "the office of speaker was no more 'a post office' after the 18th Amendment as it had been drastically changed" and that "[the Speaker] had used her quasi judicial powers and gave her ruling over the issue with due application of her mind". Finally on 19 June 2012, the Supreme Court of Pakistan ousted and further disqualified Prime Minister Gillani citing the earlier conviction on 26 April 2012.

Now 5 years later we see another Supreme Court order to move for investigation by keeping the sitting PM intact while he is the main defendant in the case. Whether this is an incident that Nawaz Sharif has always found judiciary in his favor. Sharif's first administration came to an end when the President Ghulam Ishaq dismissed Sharif on corruption charges. Sharif successfully challenged the dismissal in the Supreme Court and got back as PM in 1993. No case was able to move in the Courts including a money laundering reference against PML-N leaders Mian Nawaz Sharif and Mian Shahbaz Sharif filled in 2000 on the basis of a statement recorded by one of their trusted lieutenants, Senator Ishaq Dar. Senator Dar's handwritten statement, given before a magistrate back on April 25, 2000 alleged that Sharif brothers used the Hudaibya Paper Mills as cover for money laundering during the late 1990s.

We cannot further comment on Supreme Court Decision made on 20th April 2017 however Justice delayed always means justice denied.

Chairman Centre of Advisory Services for Islamic Banking and Finance (CAIF), former Head of FSCD SBP, former Head of Research Arif Habib Investments and Member IFSB Task Force for development of Islamic Money Market, former Member of Access to Justice Fund Supreme Court of Pakistan.