The Qazi’s judgement | Pakistan Today

The Qazi’s judgement

  • It would be a misfortune to term election disputes as matters of public importance

The highest court of law in any country is the supreme appellate branch of the judiciary. Anything that the said court holds or dictates is constitutionally binding upon all the courts present within the hierarchy. Therefore, it is expected of the Supreme Court to issue its verdicts with utmost caution and regard of its consequences.

In fact it is the Supreme Court’s foremost responsibility to develop jurisprudence in accordance with the constitution and earlier decisions of the court itself. Though doing away with certain uncalled for judgements is also part of the expectations.

Whilst authoring any judgement, the judges need to assess the repercussions of the decision they make. They also need to carefully choose their words in order to remain as unambiguous as they can. After all, every person reading the judgement wouldn’t be as well read as the lordships themselves. Use of any equivocal terminology would enable the judgement to be open to more than one interpretation. This, in itself, is one of the major predicaments faced by the justice system of our country. Judges of the lower courts start interpreting the cited judgements in accordance with their respective intellectual capacities which ultimately results in the system being crippled.

In spite of the expectations, the judges of the superior courts haven’t failed to enthrall us with their writings. Casual departures from earlier precedents have become a common mode of practice which is not only against the norms but is disastrous for the justice system. In similar cases the Supreme Court has taken contrasting views often justifying by terming it as ‘distinguishable on facts’.

The use of extraordinary jurisdiction of the Supreme Court under Article 184 (3) of the constitution is an area which requires drastic development in terms of its parameters and guidelines for exercising the same. Not many judges though are willing to redefine its use. On the pretext of ‘fundamental rights’ and ‘public importance’ Article 184 has become the weapon of first use by the judiciary as opposed to its original purpose of being the tool of last resort. The scope of the said article has been extended widely to include justification for interference in each and every aspect of the executive’s actions.

Analysts who have not read a single line of the judgement are seen criticising the same terming it as an attempt to delay the elections

Nevertheless, one judge of the apex court namely, Justice Qazi Faeez Isa has authored a dissenting note in Civil Appeal No. 467 of 2015 titled “Malik Shakeel Awan vs Sheikh Rasheed and others” recently. The other two members of the bench found themselves incapable of agreeing with Justice Isa though they didn’t disagree with him on principle but rather based their difference on the complexity that it might cause.

Justice Isa has first addressed the principle of strict liability applied by the Supreme Court and rightfully identified the Court’s departure, in the Panama papers case, from earlier precedents. Previously, the Apex Court has held that ‘mis-declaration or nondisclosure would only result in disqualification if the nondisclosure or mis-declaration circumvented a legal disability or disqualification.’ Even though the Court didn’t hold that the candidate suffered from an inherent disqualification yet they went ahead with his disqualification and cemented the application of the rule of strict liability.

He further rightly observes that when clear facts by a same number of judges on different benches have taken divergent views then that matter needs to be urgently resolved once and for all. Even though his suggestions might impact the upcoming elections however, it can’t be denied that on principle the Hon’ble Judge has taken a very crucial and bold view. Justice Isa has suggested that the matter needs to be resolved once and for all by a full court that comprises all the judges of the Supreme Court so that a binding precedent can be set for the times to come.

As of now, different benches take different views where some have disqualified parliamentarians and the others have dismissed similar petitions. Such ambiguity, especially in regards to lawmakers, is indefensible and marks a stain upon the jurisprudence of the country. It even goes on to invite open contemptuous criticisms by political quarters who believe they have been victimised. Some of their claims are supported when different benches take divergent views on the same matter. Though that isn’t true but the likes of MNS do find ground to support their accusations when they see their political opponents walk free.

The second more important aspect that Justice Isa takes on is the matter of fundamental rights and public importance. In para-23 of his note he poses a question as to the veracity of an individual election dispute and whether the same can be categorised as a matter of public importance or not. Moreover, even the fundamental right of appeal is circumvented when a matter is taken up under Article 184 (3). Only a review lies whose scope is confined and limited to the extent of a serious error in the earlier judgement. Some might suggest this to be against the principles of natural justice as well. Although the parties are being heard yet they aren’t being provided with an opportunity to present their stance before another bench of any court.

Analysts who have not read a single line of the judgement are seen criticising the same terming it as an attempt to delay the elections. I would urge all such individuals to read the complete note before passing their own judgement. As far as legal jurisprudence is concerned Justice Isa has very articulately concluded that the matter needs to be adjudicated and a principle set for the times to come.

It would be a misfortune to term election disputes and mis-declarations as matters of public importance though I’d leave it to a full court which hopefully in the near future would set a principle binding upon all of us. Neither Nawaz Sharif is going to be here forever nor Justice Saqib Nisar and company. Only the philosophy and principles of law, developed in accordance with the constitution, will prevail.