Firm Stand

There is hardly anything India can learn from Pakistan. But at a time when India's judiciary is facing a crisis with senior judges expressing doubts about its independence, Pakistan's Supreme Court has forced its politicians to run for cover. It has brought down the curtains on the political careers of powerful politicians like Nawaz Sharif. Last month, the foreign minister, Khawaja Asif was similarly disqualified by the Islamabad High Court for not revealing his work permit of the United Arab Emirates in his election declaration.

By Faizan Mustafa
  • Published 7.05.18
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There is hardly anything India can learn from Pakistan. But at a time when India's judiciary is facing a crisis with senior judges expressing doubts about its independence, Pakistan's Supreme Court has forced its politicians to run for cover. It has brought down the curtains on the political careers of powerful politicians like Nawaz Sharif. Last month, the foreign minister, Khawaja Asif was similarly disqualified by the Islamabad High Court for not revealing his work permit of the United Arab Emirates in his election declaration.

A five-judge bench unanimously sealed the fate of Sharif and others by declaring that disqualification from elections will be lifelong if there is concealment or misrepresentation of facts while filing nominations. If such a decision is taken in India, some top leaders and ministers would stand disqualified from electoral battles forever. Instead, in the Jharkhand Mukti Morcha bribery case, where some members of the Lok Sabha allegedly took bribes to defeat a no-confidence motion against P.V. Narasimha Rao, India's apex court invoked parliamentary privileges to dismiss the matter.

Pakistan's judiciary has had its ADM Jabalpur moments when it upheld military coups, but some of its decisions have been remarkable and were relied upon by our apex court. As early as 1965, the Indian top court quoted the Fazlul Quader Chowdhury versus Mohd Abdul Haque judgment of the Pakistan apex court which talks about the 'basic structure' theory. The Indian basic structure judgment, limiting Parliament's power to amend the Constitution, came almost a decade later. Even in the S.R. Bommai case (1994), our apex court followed the Nawaz Sharif judgment of 1993, which not only struck down the dismissal of a democratically elected prime minister but also restored the dissolved Parliament. Nothing similar has happened in India yet.

Pakistan's top court stood firm against successive governments and thus enhanced its stature. In 2012, the prime minister, Yousaf Raza Gilani, was punished for contempt of court for refusing to reopen corruption charges against the president. In 2017, on the basis of the Panama papers, the court ruled against Sharif and in the latest verdict, the court said in one voice that this disqualification will be lifelong. Zia-ul-Haq had brought a crucial change in Article 62 of Pakistan's Constitution, which now requires politicians to be 'honest' and 'righteous'. India does not have such a provision. But since the assets of our politicians seem to increase by leaps and bounds during their terms as legislators, perhaps there is a need for a similar stipulation.

The charge against Sharif was that he had received a salary from a company owned by his son. Even though Sharif apparently did not use this money, he has been disqualified. The court said that an 'un-withdrawn salary' too was 'receivable' and thus amounted to an asset, which should have been disclosed. Failure to do this meant that Sharif was not 'honest' and 'righteous' in the eyes of the court.

The judge hearing the case demolished the argument that any disqualification from contesting elections should be confined to five years. Under Pakistan's law, if a person is convicted in a criminal proceeding and imprisoned for two or more years, he stands disqualified for another five years after his release. But if found guilty in a civil matter, a person would remain disqualified so long as the decree of court stands and if such a decision is final, such disqualification, the court said, will be permanent. The court also clearly said that the highest levels of probity and rectitude are expected from people's representatives.

Of late, the Indian apex court does not seem to have shown similar enthusiasm in probing alleged cases of political corruption such as the ones revealed by the Sahara papers. The court's response to the demand for a probe into the death of the judge, B.H. Loya, was also disappointing. It is even being alleged that the delay in the Aadhaar hearing is also helping the government.