Deposed PM challenges disqualification in SC

Jurisdiction, judicial overreach among grounds presented

ISLAMABAD: After a series of fiery public speeches against the superior judiciary, former prime minister Nawaz Sharif on Tuesday challenged the top court’s July 28 judgment that disqualified him as member of the National Assembly.

The former premier was disqualified for failing to declare unclaimed wages earned as an executive of a Dubai-based company owned by his son in the assets statement he filed alongside his nomination papers for NA-120 in 2013 general election.

Sharif, through his counsel Khawaja Haris, has filed three similar review petitions under Article 188 of the constitution over the court’s ruling regarding his disqualification and its direction asking NAB to file references against him and his children.

The petition provides 19 reasons which, Sharif argues, provide proof for why he should not have been disqualified, and that merit the SC recalling its July 28 verdict against him. He has also pleaded that the court suspend operation of the judgment till the final decision on his review petition.

“If, during the pendency of the review petition, the operation of the final order of the court dated 28.07.2017 is not suspended, the steps taken in pursuance thereof, and its implementation as such, shall be seriously detrimental to [Sharif’s] fundamental right to a fair trial, besides working to his prejudice by seriously compromising the constitutional guarantees and mandate of articles 4, 25, and 175 of the Constitution…and rendering his review petition infructuous, and, as such, shall cause [Sharif] irreparable loss,” says the application.

Legal experts, however, believe there are few chances that the judgment will be reversed in exercising the review jurisdiction because its scope is very limited. In addition, reviews are always fixed before the same bench.

But the top court still has authority to revisit its judgment at any time as there are precedents in this regard, they added.



In the meantime, debate is still going on over giving the right of appeal against judgments announced under Article 184 of the Constitution.

A senior government official admitted that a constitutional amendment would be required to give the option of appeal to the parties concerned. As the court is in recess, a larger bench may be able to take up the case next week, the official added.

Judicial overreach?

The former PM contends that the final judgment suffer from errors apparent on account of being violative of articles 175 (2) and (3) – which deal with jurisdiction and separation of powers of branches of government – and articles 4, 9, 10A, 14, and 25 of the Constitution – which deal with fair trials and equality and security of citizens.

The review petition states that if there had been undisputed evidence that Sharif had received a salary from Capital FZE but had deliberately concealed the amount in his declaration of assets and liabilities in the nomination papers, the issue of disqualification could have arisen.

However, it is stated that when he has neither received any salary nor intended to claim it, it cannot be inferred that he acted dishonestly in omitting mention of the salary as an asset in his nomination papers, adding that the final order of the court did not take this into account, which would constitute an “error floating on the face of the record” and merits a review.

The review petition further states that provisions of Article 62(1)(f) could not be invoked against Sharif without holding a regular trial and providing him with a full opportunity to provide evidence in support of the facts stated in the written submissions and to rebut any evidence to the contrary.



“It being a question of first impression as to whether ‘receivables’ constitute an asset or not for the purposes of Section 12(2) of the Representation of People Act (ROPA), no dishonest intention could be attributed to [Sharif], even if such salary is categorised by [the SC] as a receivable and held to constitute an asset held by the petitioner,” the document states.

The review petition says that the omission to mention the unclaimed salary by Sharif in his nomination papers could not, in any case, lead to a declaration on dishonesty in terms of Section 99 (f) of ROPA and Article 62 (1) (f) of the Constitution without first ascertaining whether such omission was deliberate and with an ulterior motive, or merely inadvertent, accidental or due to a misconception or misunderstanding of law or fact.

Sharif also raises the point that the ground for disqualifying him was not included in any of the petitions against him, and, as such, he had never conceded jurisdiction of the court to adjudicate on the issue.

It is also submitted that as a matter of fact since there is no appeal provided against the SC judgment, and the law has already provided a forum for adjudication of an allegation based on non-declaration of any asset by a candidate by way of the provisions of Section 76A of ROPA entail the opportunity to contest any allegations and the right of appeal in an election tribunal, “the direct assumption of the jurisdiction to adjudicate upon this matter by [the SC] is tantamount to denying the petitioner not only his right” to a fair trial, but also the right to at least one appeal against any adverse order.

The former PM has submitted that the facts in his written submissions were not considered in their entirety, such as that “in January 2013, when [Hussain Nawaz] shared his decision to wind up the company, [Nawaz Sharif]  categorically told him that he did not intend to claim any salary from the company”. Sharif considers this evidence that the judgment has apparent errors and merits a review.

General objections

Sharif also submits that there is no precedent in the judicial history of Pakistan or the world for four final judgments in one case and requests that this be resolved and the inherent anomalies removed by reviewing the final order of the court, as well as the judgment.



The review petition states that the request made by the five-judge bench to the Chief Justice of Pakistan for nominating a Supreme Court judge to supervise and monitor the implementation of the final judgment and “oversee the proceedings conducted by NAB and the Accountability Court” is tantamount to arrogating to the apex court the role of complainant, investigator, prosecutor, judge, jury, and court of ultimate appeal all at once, which is repugnant to the very basis of the criminal justice system of Pakistan, and, “it is submitted with respect, a brazen violation of the petitioner and his family’s fundamental right to fair trial”.

He also contends that this breaches the constitutional norm of separation of powers and needs to be expunged from the final judgment.

Sharif also objects to the SC’s appreciation of JIT members and their subordinate staff in preparing and filing a report. He has argued that this forecloses on his right to challenge the credibility of each JIT members in terms and “the gross shortcomings of the JIT report itself”.

It is also contended that the judgment targets the Sharifs in a discriminatory manner.

“It encourages NAB to initiate a witch-hunt against [Sharif and his] children… besides conveying a negative message to, and thereby compromising the independence of the learned trial judge, who may ultimately try the petitioner on the basis of the references to be filed before him on the directions of” the SC.

His last set of arguments is that the bench’s final order was coram non judice – implying that the bench went beyond its jurisdiction – because of the extensive directions it gave to NAB which would violate the trichotomy of powers and the rights to due process and a fair trial.