ISLAMABAD: In an apparent reaction to unrelenting criticism against the judiciary by former prime minister Nawaz Sharif, the Supreme Court on Wednesday said judges could respond publicly to criticism in the same vein as their critics.

While referring to a recent trend emerging from an English court judgement, Chief Justice Mian Saqib Nisar justified public response by judges to criticism. “The latest trend from the English court of law is that judges do respond publicly to criticism like this, because judges cannot add­ress public meetings,” observed Chief Justice Nisar while heading a three-judge bench of the apex court hearing a set of 13 petitions challenging the Elections Act 2017.

He recalled that the English court judgement was referred to him by Justice Ijaz-ul-Ahsan, who then explained that a robust institutional response should come up to help remove any misconceptions.

Attacks on judiciary fall within the purview of Article 5 (loyalty to the state and obedience to the constitution), says Justice Ijaz

Justice Ahsan explained that attacking institutions like the judiciary fell within the purview of Article 5 (loyalty to the state and obedience to the constitution) of the Constitution. The chief justice also requested Sardar Latif Khosa, who represented Pakistan Peoples Party, to read Article 204 (contempt of court) along with Article 5. He was also asked to explain whether punishment under Article 204 for scandalising and ridiculing a court or a judge was for six months or could continue until the person who committed the contempt purged himself of the guilt.

The basic organ of the state was the judiciary and loyalty to the state meant loyalty to the judiciary, the chief justice said.

Mr Khosa said a society could not be called civilised unless its members respected its Cons­titution, adding the Supreme Court had been empowered by the people for being a repository of their trust and confidence. It was not that the former prime minister had been ousted by the judiciary, but by all the people who stood behind this institution, the counsel argued, adding that humiliating the judiciary amounted to ridiculing the nation as well as the constitution.

“Trying to make out a conflict in a situation amounts to treason as it destroys the state,” he contended. Mr Sharif had shaken the very fundamentals of the Constitution and civil society with his rebellious and outrageous outbursts, said Mr Khosa. However, he questioned why the judiciary was showing restraint towards those exploiting the situation. The judiciary had rightly called him (Sharif) “Godfather” and “Sicilian mafia”, he said, adding that he commanded complete hold on the media due to which Panama review case verdict did not come in the limelight. Had it been published, the people would have got the answer why Mr Sharif had been ousted, the counsel said.

Mr Khosa was also bitter about the Elections Act as that he said had done away with the column requiring candidates to declare their assets. “Was it done through legislation and whether all the political parties voted in favour of the amendment?” the chief justice enquired. The counsel said his party had opposed the amendment. However, he added, no debate on the matter had ever taken place in the assembly.

The apex court asked Additional Attorney General Mohammad Waqar Rana to furnish a transcript of the debate in the National Assembly on the Election Act. The counsel described the election law as a colourable legislation and therefore should be struck down by the court, as a disqualified person had made himself a “supra prime minister”.

When the court asked about the position of the incumbent Prime Minister Shahid Khaqan Abbasi on the issue, the counsel replied that he had allegedly become a “dummy” or a “puppet prime minister” by declaring Mr Sharif as “prime minister”.

“The prime minister says that Nawaz Sharif is still his prime minister and has declared the judgement under which Sharif was disqualified worthless,” Justice Ahsan recalled.

During the proceedings, the chief justice wondered whether the court could interfere with Section 203 of the Election Act as it was ultra vires and against the spirit of the Constitution. The counsel replied in the negative, but hastened to add that it ran contrary to the norms of the Constitution.

Justice Umar Ata Bandial observed that the Pakistanis were not in a deep slumber but were awake and sacrificing their lives for the country. The judiciary had confidence and trust in the people, Justice Bandial said and asked the counsel to speak with faith and courage for the country. Things would be worked out soon so that no one could destroy the country, he added.

Length of disqualification

While appearing as amicus curiae before a five-judge bench of the Supreme Court hearing a set of 17 appeals and review petitions to determine the length of disqualification handed down under Article 62 (1)(f) of the Constitution, Barrister Syed Ali Zafar argued that Articles 62 and 63 dealing with the qualification and disqualification of the parliamentarians complemented each other and had to be interpreted in a systematic manner.

He explained that the parliament deliberately did not envisage any time period in Article 62 and reposed its trust in courts to determine the disqualification period. Former prime minister Nawaz Sharif had been disqualified under Article 62 (1)(f) for an offence that under Section 78 of the Representation of the Peoples Act (RoPA) carried a sentence of up to three years, he said, adding that the total period of disqualification for such a person could be eight years from the date of declaration by a court.

In case of those having fake degrees, he said their disqualification period could be up to 12 years under Pakistan Penal Code.

The counsel argued that law-making was a responsibility of the parliament and not of the judges. Citing an earlier decision of the Supreme Court about the 21st Amendment, he said it established that there could be no judicial aggrandisement of power at the expense of the elected representatives of the people.

In order to arrive at a fair and just conclusion, he contended, the Constitution ought to be interpreted according to the principles or the ‘rule of harmony’, ‘rule of completeness’ or ‘rule of exhaustiveness’. Under this principle, it had to be seen how the Constitution dealt with similar situations, as no particular article lived in vacuum, the counsel said.

Published in Dawn, February 8th, 2018