PM’s qualification a matter of public importance, says Justice Khosa

Counsel says PM was not running away from accountability but he should be treated in accordance with law

ISLAMABAD: Discussing Article 184 (3) of the Constitution, Justice Asif Saeed Khosa – head of the apex court’s five-judge bench hearing Panamagate case – has observed that adjudicating the qualification of Prime Minister Nawaz Sharif as a lawmaker is a matter of public importance.

Justice Khosa on Thursday said the post-election controversy about disqualification of a parliamentarian could be challenged before the National Assembly speaker and if he rejected the reference then a writ petition was filed in the high court.



However, he observed that in Panama leaks case, the chief executive of the country was involved and therefore the matter was of public importance. “The criminal law can be tried in this matter,” he added.

Another judge Justice Ejaz Afzal Khan observed that if the court convicts an MP on the basis of criminal law then he will be disqualified and the stigma of his disqualification will remain forever. “[But] how the court can give decision on the basis of an assumption as it will have far-reaching implications,” he asked.

Referring to the Farzand Ali case judgment, Justice Azmat Saeed Sheikh observed that the top court can disqualify any parliamentarian after election. He, however, observed that it will be violation of the Article 10-A, if someone is penalised without confronting before the court of law.

The PM’s counsel Makhdoom Ali Khan also concluded his 17-hour-long arguments on Thursday. The judges appreciated his valuable assistance on different legal issues as Khan cited more than 100 judgments during his arguments, aimed at protecting the PM from disqualification.

Paying tribute to Khan, Justice Khosa said his arguments were exceptional and it was a treat to listen to him. He said it was a pity that the courtroom was so small for otherwise he would have asked all young lawyers to come and listen to him for that would have taught them what advocacy is all about.

The counsel in his arguments stated that he was not raising objection to the maintainability of the petition, filed by PTI chief Imran Khan.  He, however, cautioned the bench regarding the scope of its jurisdiction in this matter under Article 184 (3) of the Constitution.

Khan said the PM was not running away from accountability but he should be treated in accordance with law. He also cited Articles 10-A, 17, 25 of the Constitution.

The counsel further stated that standard of proof required to disqualify for illegal/corrupt practice etc. in election matters was that of a criminal trial.  “The petitioner must prove guilt beyond reasonable doubt. That has not been done. The PM cannot be disqualified in this case,” Khan said. He also argued on what material the court can use to reach a conclusion.

He said in the exercise of its constitutional jurisdiction, the court does not adjudicate disputed questions of fact. Instead, it operates on the basis of admitted documents. “This is because every citizen has the right to have disputed questions of fact determined through a fair trial,” he said.

The counsel said if the Supreme Court wants to adjudicate disputed questions of fact then it has to use the same procedure as used by other courts, ie, it has to like frame issues, require documents to be proved, call witnesses and allow cross-examination.

Citing judgments, he said the SC has repeatedly said that there would be no adjudication when intricate examination of voluminous evidence is required. “The PTI has relied on newspaper clippings, books, articles, interviews and news reports. None of this can be called evidence,” he said.



The counsel told the bench that similar matters are also pending in the Election Commission of Pakistan as well as the Lahore High Court. He said the court has yet to determine about the competent forum for deciding the definition of Sadiq [truthful] and Ameen [trustworthy] under Article 62 of the Constitution.

Khan said the government of Pakistan has also two offshore companies. Pakistani hotels Roosevelt in the USA and Scribe in France are owned by offshore companies. The counsel contended that establishing an offshore company was not illegal.

Upon this, Justice Khosa also observed that owning an offshore company was not a crime but concealment of wealth and tax evasion was.  The bench asked Jamaat-e-Islami’s counsel to start his arguments today (Friday).

Published in The Express Tribune, January 20^th, 2017.