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Iqama Ltd

  • Who remains at fault?

Less than a year after the ‘landmark’ judgement disqualifying Nawaz Sharif was rendered, another one of his closest aides has been sent packing in the same humiliating manner. Though this time with a heavy heart, a High Court displayed immense levels of judicial activism and authored yet another one of the ongoing political judgements.

Although the judgement has been welcomed by many quarters, not many people succeed in realising the repercussions of such dictates. Constitutional courts assuming political jurisdiction is one of the biggest stains on the jurisprudence being developed nowadays.

Non-disclosure of assets or even misdeclaration of the same is a pertinent issue, especially when it comes to members of the parliament. However, a separate mechanism should be made to take care of such issues. Who remains at fault?

Unfortunately, the political leadership itself is to blame. It’s a seed they themselves planted; one which is ripe enough to bite them sharply. Failure to legislate for such situations has cost them their political careers to judicial dictates. A stroke of their lordships’ pen and the decades-long career of seasoned politicians enters the world of history.

Now the question arouses how is this form of activism their fault? Maybe if the parliamentarians considered foolproof legislation on election matters then only they might have averted such decisions.

No one institution should be powerful enough to over-ride others. Maybe Khawaja Asif got what he deserved, no defending his self. However, it would have been a lot more beneficial if this would not have been at the behest of the courts

Obviously, if a member of the parliament is misrepresenting in his nomination papers he has to be held accountable. That still does not mean that an elected member should be sent home in such a manner. There should be a mechanism which enables the ECP to investigate all potential candidates and subject them to extreme scrutiny. Not the one which the returning officers currently employ — making politicians sing the national anthem in a court room. But rather a system where iqamas could be revealed before a candidate entered the arena.

Why else was the ECP constituted in the first place? It should only be in their domain to adjudicate upon issues pertaining to elections, nomination papers and all other related matters.

The UAE “assets” were filed with the ECP in 2015. Not exactly non-disclosure. Lordships might disagree though. Political disputes should best be kept away from courts. Certain questions do require judicial intervention, however, a proper forum (the ECP) should have the jurisdiction to settle such matters.

A bill before the parliament extending jurisdiction of the ECP might be of help. In the absence of any legislative instrument on the subject matter, the courts of law have a free hand to intervene. And a mighty pen to justify their decisions as well. No matter how heavy the heart of the judges was, while penning down Khawaja Asif’s disqualification, they did strike off his political career.

Another angle to look at the judgement, however, is that a foreign minister of the country was an employee of an international company. This does give rise to a question of conflict of interest and even goes on to touch upon national security, as Imran Khan alleges. For this very reason a judicial intervention maybe justified, though I would reiterate that the proper forum should deal with this matter and not the High Court in its constitutional jurisdiction.

Moreover, guidelines should also be set for certain omissions. That is another point which the parliament should consider rather than exchanging blows during budget sessions.

One fact which has been established over the past few months is that if Nawaz Sharif and Company are not backtracking on their tirade against the judiciary, and the latter doesn’t seem to be bending either. Through its new found judicial activism the judiciary is bent upon taking an eye for an eye. Such precedents will not be forgiven by history. More so when those determining the test of Saadiq and Ameen themselves do not have a test to fall upon the same criteria. How can a man deciding the honesty of another not be honest himself? I dare not say that the Hon’ble judges are not honest, however, a degree of the same tests must be applied to them as well. Maybe then these decisions might seem justifiable.

Deciding the merits and demerits of any politician should not fall within the domain of the judiciary. It simply creates more problems. These judgements give rise to further accusations against the judiciary for being biased and intervening. Maryam Nawaz’s tweet of a fixed match is given a lot more air than it normally would have. A lot many people dislike the establishment’s interference in political matters. Then why the double standards when it comes to another institution of the state? With statements such as a holistic interpretation of the contempt law, being issued by the chief justice, the thin fine line between the separation of powers remains further blurred.

Unquestionably, the judiciary has the power and mandate to keep the executive in line when the latter toes over it, however this power should be exercised with the utmost caution and restraint.

No one institution should be powerful enough to over-ride others. Maybe Khawaja Asif got what he deserved, no defending his self. However, it would have been a lot more beneficial if this would not have been at the behest of the courts.

Even though I hold my reservations against the judgement rendered this past week, then again something has to be done when it comes to such matters. With a ‘heavy heart’ I have to concede that till such a time that the parliament empowers itself to avoid an Iqama holder from contesting the election in the first place, the judiciary will act and unfortunately there doesn’t seem to be another option.

An employee of a foreign company cannot be allowed to hold a cabinet post in his own country. Though the least that can be done is to learn from Asif’s example and make laws which send only truly honest men in the parliament. That might save the politicians humiliation at the hands of the robed gentlemen.