Imran & CJP both legally wrong on Nawaz & LHC issue. By Hem Raj Jain
21 Nov 2019
The Pakistan media (print & electronic) is full of controversy between PM Imran Khan and Chief Justice of Pakistan (CJP) Asif Saeed Khosa where in a scathing rejoinder to Imran Khan’s recent statements on the country’s judiciary, the CJP on Wednesday said it was the federal government that allowed ailing former premier Nawaz Sharif to go abroad for medical treatment and the Lahore High Court (LHC) only settled the modalities of the matter. The CJP said this in reference to PM Imran’s statements wherein he urged Justice Khosa and his successor to restore the public’s trust in Pakistan’s judicial system because in public perception there are two laws one for powerful people and other for ordinary or poor citizens.
In this entire controversy both Imran & CJP are legally wrong because Imran has not right to criticize Judiciary on Nawaz matter as he did not move Supreme Court of Pakistan (SCP) against the said controversial judgment of LHC. At the same time it was legally and factually wrong on the part of CJP to say that it was the federal government that allowed ailing former PM Nawaz Sharif to go abroad for medical treatment as explained below:-
(1)- Having said that Nawaz was grossly wronged by Pakistan Judiciary & NAB and the former PM Nawaz & his party PML (N) did not show requisite political will in order to correct said wrong by political & legal actions (as mentioned at http://pakistanchristianpost.com/opinion-details/3487 ) the former PM Nawaz has no right to deny the present legal situation that Nawaz is a sentenced person (in appeal) and an accused under trial and is in prison (though unnecessarily as mentioned in said PCP Article 3487).
(2)- Every State tries to bring the people under law (civil, criminal and martial) even those who try to violate it but every time State does not succeed due to various reasons most important of these is the lack of adequate capacity or resources with the State. With the result State gives pardon, amnesty, etc through give & take and makes deals as has happened in India also from time to time. For example armed rebels in N-E and Kashmir were given amnesty for bringing them in main-stream politics, amnesty scheme (of 45% Income Tax on black money) for tax evaders, money launders etc are some cases of such give & take by the executive organ of the State to the law violators whom State finds beyond its capacity or not worth the effort to pursue the matter further (including on humanitarian grounds).
(3)- The judiciary can only object to such amnesty schemes if there is arbitrariness in such amnesty schemes or there is no give & take (as LHC did it illegally by not demanding Rs 7 Billion Indemnity Bond or something similar to it). But judiciary cannot question the right of the executives to grant such amnesties. For example, Indian judiciary cannot question the government of India (GOI) why it granted amnesty to separatists of J&K who killed many civilians (including Kashmiri Pandits) or to armed rebels in N-E who killed many civilians, similarly, about amnesty schemes to black money holders through 45 % Income Tax on it.
(4)- In case of Nawaz the government of Pakistan (GOP) allowed Nawaz to go to UK after furnishing indemnity bond of Rs 7 Billion because that is a give & take between Government and the beneficiary of the amnesty scheme which happens in such amnesty deals. But LHC by allowing Nawaz to go to UK out of its territorial jurisdiction without striking a give & take deal (with the concurrence of the government of Pakistan) is bad in law and judicial over-reach by LHC.
(5)- The LHC could not understand that how the GOP will bring Nawaz back to Pakistan if Nawaz refuses to come despite Court orders warranting his presence in Court. Precisely for such situation the GOP demanded Rs 7 Billion Indemnity Bond as an amnesty deal. At the maximum the LHC could have modified the condition of Rs 7 Billion Indemnity Bond but at the same time the LHC was legally expected to make it in such a way that it will remain a give & take between GOP and Nawaz.
But, as said earlier, because against this illegal verdict of Lahore High Court the GOP did not go to SCP (where it could have explained to SCP about give & take nature of this amnesty deal through Rs 7 Billion Indemnity Bond), Imran has no right to complain against judiciary