Case in Point: Moving beyond Panamagate

In January, after the retirement of Chief Justice Jamali, a re-constituted Supreme Court bench began hearing the Panama case. It soon became clear from the new bench’s remarks that it felt no aversion towards judicial interference in political matters. About four months into the case, on April 20, two judges ruled strongly in favour of disqualifying the PM on the basis of Articles 62 and 63 of the constitution.

Over the last three months, the other judges slowly worked their way to the same conclusion – and in the process drew heavily upon the support of civil and military bureaucrats. Similar disqualification petitions, it must be mentioned, are pending against Imran Khan, Jehangir Tareen and other elected leaders and it is not difficult to see the direction in which the situation is moving.

If one were to keep political partisanship aside for a moment, it should not be difficult to see the systemic impact of Panamagate: the legitimacy and authority of our entire parliamentary system has been greatly eroded over the last eight months. The view is rampant in many circles that the unelected branches of the state have acted in tandem to bring an elected leadership to its knees.

Media analysis of the situation has thus far been focused on the legal nitty-gritty of the Panamagate judgment and the JIT report. Legal analysis has its place in public discourse, but to be meaningful, it must be fully informed of the larger historical and political backdrop. The historical backdrop of Nawaz Sharif’s disqualification is that he is not the first elected prime minister to have had his term in office cut short. It is recorded history that no prime minister in Pakistan’s 70 years has ever been allowed to complete his or her constitutionally-appointed five-year term. PM Liaquat Ali Khan was assassinated in his second year (1951). Soon thereafter, Khawaja Nazimuddin was dismissed by the governor-general using the dubious legal doctrine of “royal prerogative” (1952). Over the next six years, around five of his successors got prematurely ousted through no-confidence motions.

Our next PM, Z A Bhutto, had to call early elections because of street pressure (1977) and was executed soon after that. PM Junejo (1988) was dismissed under Article 58(2)(b) for “failure to run the affairs of government in accordance with the provisions of the Constitution”. PM Benazir was toppled twice on the same charge (1990 and 1996). PM Nawaz was ousted first through backdoors military pressure (1993) and then through a violent military coup (1999). PM Jamali was forced by Musharraf to resign (2004). PM Yusuf Raza Gilani was disqualified for, amongst other flaws, not being “righteous” and “ameen” (2012) and now the same sword has fallen upon the neck of PM Nawaz (2017). In this historical context, the odds were always against the prime minister surviving Panamagate.

While it may be too late for Nawaz Sharif and his party, there is still time. If we want the next PM to complete his term in office, parliament must adopt a proactive legislative strategy. Here are a few steps parliament can still take.

First, expunge Articles 62 and 63 of the additional clauses added by General Ziaul Haq. We always had constitutional provisions prescribing stringent requirements for electability. But in 1985 General Zia added further requirements such as being “sadiq” and “ameen”; these were purposefully left undefined. These clauses were, from the first day, meant to act as ticking time-bombs for the parliamentary system. It is only a lucky coincidence that they didn’t cause much damage earlier.

One does not have to be a Nawaz Sharif loyalist to see the threat posed by these clauses to our electoral system. Justice Khosa himself wrote the most damning things about these clauses, as recently as the year 2015. In Ishaq Khan Khakwani v Nawaz Sharif (PLD 2015 SC 275), His Lordship wrote: “The amended Article 62 of the Constitution uses such phraseology and terminology which creates confusion in the minds of the citizens and may produce nightmares for lawyers and Courts… Whether a person is ‘sagacious’ or not depends upon a comprehensive study of his mind which is not possible …” Justice Khosa also noted that the “requirement qua being ‘honest’ and ‘ameen’” is “ idealistic”, “unrealistic” and “ill-defined” and its inclusion “in the Basic Law of the Land renders the same impracticable and detracts from the sanctity which the Constitution otherwise deserves.”

It is an irony of history that less than two years later, the same Justice Khosa (and four of his Supreme Court colleagues) felt no reservations in invoking these “idealistic”, “unrealistic” and “ill-defined” constitutional provisions to disqualify a thrice-elected prime minister. The lesson that pro-democracy people may draw from this judicial somersault is that they must never again place their bet entirely upon the judiciary’s pro-democracy interpretations of constitutional provisions. The only way forward, therefore, is to amend the articles.

Second, the definition of ‘corruption’ provided in Section 9 of the National Accountability Ordinance, 1999 must be narrowed down. At present, it states: “A holder of a public office, or any other person, is said to … have committed the offence of corruption … if he or any of his dependents … has acquired…assets or pecuniary resources disproportionate to his known sources of income… or maintains a standard of living beyond … his sources of income.” In other words, every citizen, and especially a politician, is to be presumed a thief until he exonerates himself. This represents a total inversion of the general principle of criminal law: everyone is to be presumed innocent until proven guilty in a court of law. To understand why this law is so despotically phrased, you have only to look at who framed it and when: General Pervez Musharraf in 1999.

Finally, we need to introduce a statute of limitations in the area of criminal law. In most countries of the civilised world, statutes of limitation stipulate that an accused cannot be prosecuted for offences committed more than a certain number of years ago. If the state wishes to prosecute someone, it must do so within a reasonable time after the commission of the offence or else forget about it. It is because we have no such law that we have ended up in this patently absurd situation where the state will be prosecuting Nawaz Sharif and his family for an offence he allegedly committed more than 22 years ago.

There are at least two reasons for bringing in such a law. First, the citizens of a free country should not have to live under perpetual fear of prosecution for offences dating back to the distant past. And second, in law as in life, there must always be left ample room for compassion and redemption. In the famous NRO case (PLD 2010 SC 1), Justice Jawwad S Khawaja, one of our most thoughtful judges, proclaimed: “Even those who may have committed wrongs in the past … are not beyond being redeemed through a compassionate law which heals the fissures in the nation’s divided polity.”

A statute of limitation prescribing a short limitation for anti-corruption prosecutions would not only help heal the fissures in our nation’s divided polity, it would also be furtherance of the Islamic spirit of our constitution whereby the doors of redemption must always remain open even for the worst of sinners.

 

The writer is a partner at The Law and Policy Chamber.

Email: umer.gilani@gmail.com

This article is part of a new series aimed at encouraging informed debate on the Panama case. Respected members of the legal community are invited to join in with their views.