Adjudicating ‘Honesty’: Prime Minister(s) and the Supreme Court of Pakistan (I-CONnect Column)

[Editor’s note: This is one of our biweekly I-CONnect columns. Columns, while scholarly in accordance with the tone of the blog and about the same length as a normal blog post, are a bit more “op-ed” in nature than standard posts. For more information about our four columnists for 2017, see here.]

—Menaka Guruswamy, Advocate, Supreme Court of India and B R Ambedkar Research Scholar and Lecturer, Columbia Law School

In 2016, when 11.5 million records were leaked from the Panama based law firm of Mossack Fonseca, they revealed a long list of the wealthy and influential who stash their money in offshore companies – including then Prime Minister Nawaz Sharif and his family. Soon enough using the Panama papers, Imran Khan, Pakistan’s flamboyant former cricket captain and leader of the Pakistan Movement for Justice party, filed a petition at the Supreme Court of Pakistan   In Imran Ahmed Khan v Mian Muhammad Nawaz Sharif Prime Minister of Pakistan, the petitioners asked for dismissal of the Prime Minister, arguing that Sharif and his family had assets disproportionate to their income, contradictory to regulatory declarations, and thereby that Sharif was not honest and ‘ameen’ or trustworthy/faithful.[1]  The Supreme Court of Pakistan was once again asked to adjudicate the honesty of a Prime Minister.

Article 62 (1) (f) of the Constitution of the Islamic Republic of Pakistan, 1973 mandates that a person shall not be qualified to be elected to the Majlis-e-Shoora (Parliament) where there is declaration by a court of law of him not being sagacious, righteous and non-profligate, honest and ameen..[2] This constitutional provision is a remnant from the days of General Zia-ul-Haq who seized power through a military coup in 1978 and remained President till his death in a mysterious plane crash in 1988. Surprisingly, civilian political parties chose to retain this provision, despite the 1973 Constitution arrived at by political consensus.  This is even more puzzling given the acrimonious and contentious relationship that the Supreme Court has traditionally enjoyed with elected Prime Ministers and their governments.

While the Court has been quite accommodating of military coups, most (in)famously in the 1950s in State v Dosso when it justified a military coup arguing that ‘when a revolution is victorious…then it becomes a law creating fact,’[3]  it has not been that accommodating of elected Prime Ministers. In 1977, Prime Minister Zulfiqar Ali Bhutto was imprisoned on highly dubious charges of murder, at the behest of by Zia-ul-Haq, the Chief of Staff of the Army, who quickly declared martial law. Bhutto’s wife, Begum Nusrat Bhutto, filed a petition before the Supreme Court challenging her husband’s detention under martial law.[4] The Court not only found the military coup to be legal, but also did not prevent the execution of the Prime Minister.

If in the founding decades of Pakistan, the Court relied on the legality of the victorious revolution, in contemporary times, the Court uses a series of constitutional provisions, including Article 62 (1) (f) and, notably, Article 184 (3) to remain, in the words of Moeen H. Cheema, ‘deeply and structurally political’.[5]  Article 184 (3) enables the Court to intervene and pass orders when a question of public importance exists with reference to the enforcement of fundamental rights – often at the cost of the executive.

To be fair, the Court has been consistent about its anxiety with corruption and serious about its commitment to expansion of its judicial power. It does not solely target Prime Ministers. A sample array of cases of the Court taking suo motu cognisance under Art 184 (3) include it acting on illegality in appointments to the National Accountability Bureau – the premier anti-corruption body,[6] embezzlement allegations against the Sindh Coal Authority and Energy Department,[7] and  even out of turn promotions violating the Baluchistan Civil Servants Act, 1974.[8]

But, the Court most potently deploys Article 184 (3) against Prime Ministers. For instance, on 19 May 2012, in Muhammad Azhar Siddique v Federation of Pakistan, the Court convicted Prime Minister Yousuf Raza Gilani of contempt of court and disqualified him from being a member of parliament and from continuing as Prime Minister.[9] The Prime Minister had been found guilty of contempt of a Court for refusing to follow its  directions to ask the Swiss authorities to re-open an investigation into charges of corruption and of storing illegitimately acquired wealth by President Asif Ali Zardari.[10] The Court found that this case warranted the application of its 184 (3) jurisdiction since the Prime Minister had ‘deliberately and persistently’ defied its direction and this was ‘detrimental to the administration of justice …as it brings the entire judiciary …into ridicule.”[11]

However, in Imran Ahmed Khan the Court is initially reticent about its self-assumed ‘inquisitorial’ role. The majority opinion, written by Justice Ejaz Afzal Khan, viewed the case as one in which the ‘unauthenticated documents of the petitioners were pitched against the unauthenticated documents of the respondents.”[12] Justice Khan decides that the court under its power in Article 184 (3) cannot arrive at a conclusion in the “absence of undisputed evidence.”[13]

Therefore, on April 20, 2017 a five judge panel (a majority of three judges, with two judges dissenting) constituted a Joint Investigation Team (JIT) including police and military intelligence to investigate, within sixty days, Prime Minister Nawaz Sharif, his daughter and political heir Maryam, and other relatives on the basis of the Panama papers to arrive at evidence that would befit the unspecified standard of Article 184 (3) and enable a future ‘special implementation bench’ to pass ‘appropriate orders’. The dissenting judges thought that there was enough material on the record to immediately disqualify the Prime Minister, and didn’t see the need for further investigation.

Sure enough, the JIT presented their ‘completed investigation report’ on July 10, 2017, and after a summary discussion of the evidence, the Court found a case of undisclosed assets against the Prime Minister.  Extraordinarily, the case turned on whether salaries that the Prime Minister did not claim and receive, but failed to disclose as warranted by the Representation of People Act, 1976 would constitute an asset.  In the words of the court ‘an unwithdrawn salary’ was bound to be disclosed, and non-disclosure would constitute a violation of the law. Hence Sharif was not ‘honest’ in terms of Article 62 (i)(f): he was disqualified from parliament and ceased to be Prime Minister.[14]

There are many fascinating aspects to the use by the Court of its power to adjudicate on the honesty of Prime Ministers and the enforcement of fundamental rights – to essentially adopt a politicized role at the expense of elected governments. Whether such a role is constitutionally ever tenable in any paradigm of separation of powers is a relevant inquiry. But, what is even more intriguing is the adoption of ‘inquisitorial proceedings’[15]  to adjudicate in summary fashion the honesty or lack thereof of Prime Ministers. For this now makes the judiciary responsible for investigation, adjudication and governance – at the expense of constitutional democracy.

Suggested citation: Menaka Guruswamy, Adjudicating ‘Honesty’: Prime Minister(s) and the Supreme Court of Pakistan, Int’l J. Const. L. Blog, Dec. 5, 2017, at: http://www.iconnectblog.com/2017/12/adjudicating-honesty-prime-ministers-and-the-supreme-court-of-pakistan-i-connect-column/

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[1]  Imran Ahmed Kahn and others v Mian Muhammad Nawaz Sharif Prime Minister of Pakistan, Constitutional Petition No. 29 of 2016, Constitutional Petition No. 30 of 2016 and Constitutional Petition No. 03 of 2017

[2] Article 62.         Qualifications for membership of Majlis-e-Shoora (Parliament):

(1) A person shall not be qualified to be elected or chosen as a member of Majlis-e-Shoora (Parliament) unless (f) he is sagacious, righteous and non-profligate, honest and ameen, there being no declaration to the contrary by a court of law;

[3] PLD 1958 SC 533 (Pak).

[4] Begum Nusrat Bhutto v Chief of Army Staff, PLD 77 SC 657

[5] Moeen H. Cheema, The Chaudhry Court; Deconstructing The Judicialization of Politics in Pakistan, 25 (3) Washington Law Journal 447 at 448.

[6] Suo Motu Case no. 16 of 2016. The Court took suo motu cognizance and then found that the Prime Minister cannot relax the qualifications and make appointments. The court then proceeded to create a Committee to examine 96 such appointments and report back to it.

[7] Suo Motu Case no. 19 of 2016

[8] Amanulah v Government of Baluchistan and others Civil Petition No. 80-Q of 2010: 2017 SCMR 192

[9] Muhammad Azhar Siddique v The Federation of Pakistan, Const. Petition No. 40 of 2012 & CMA 2494/12, Order dated 19 June 2012.

[10]  Dr. Mobashir Hassan v Federation of Pakistan (PLD 2010 SC 265), para 178

[11] ibid

[12] Imran Ahmed Khan and others v Mian Muhammad Nawaz Sharif Prime Minister of Pakistan, Constitutional Petition No. 29 of 2016, Constitutional Petition No. 30 of 2016 and Constitutional Petition No. 03 of 2017 Judgment and order dated 20.4.2017 at para 14

[13] Ibid at para 15

[14] Imran Ahmed Khan and others v Mian Muhammad Nawaz Sharif Prime Minister of Pakistan, Constitutional Petition No. 29 of 2016, Constitutional Petition No. 30 of 2016 and Constitutional Petition No. 03 of 2017 Judgment and order dated 28.7.2017 at para 14

[15] Mian Muhammad Nawaz Sharif and Others v Imran Ahmed Khan Niazi and Others, Civil Review Petition No 297 of 207 in Const. Petition No. 29 of 2016, review judgment dated September 15, 2017 at para 15