ISLAMABAD: The legal battle in the apex court on the Panama Papers verdict started in September 2016. A year later, it finally seems over.
After three consecutive days of hearings, the top court on Friday dismissed review petitions filed by deposed prime minister Nawaz Sharif and his children against the court’s July 28 verdict.
Sharif was disqualified from holding public office over his failure to disclose unwithdrawn wages due to him from a Dubai-based company owned by his son in the assets statement he filed along with his nomination papers in 2013. The judgment also asked NAB to file references against Sharif family members.
"For reasons to be recorded later, all these review petitions are dismissed,” announced the five-judge bench, headed Justice Asif Saeed Khosa. The judges have, however, assured the Sharifs’ attorneys that the trial of the accused will not be prejudiced. Even Justice Ejaz Afzal Khan again made it clear that trial court will be free to examine the witnesses.
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Justice Khosa also said that the SC considered the constitutionality of the matter, while a trial court would determine criminal aspects of the case.
Salman Akram Raja, counsel for Sharif’s children, adopted the arguments of Sharif’s own attorney Khawaja Haris.
The decisions surprised most members of the Sharifs’ legal teams, and one lawyer expressed apprehension that the SC may add something to its written judgment which could further harm the Sharifs in later cases.
PTI’s lawyer Chaudhry Faisal Hussain appreciated the SC’s verdict and noted that the Sharifs’ legal team has failed to end the role of the monitoring judge appointed in the original judgment.
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Meanwhile, legal experts have started debating what jurisprudence and judgment laws have evolved during the apex court’s year of adjudication.
First, the five-judge bench on April 20 issued a 540-page verdict wherein each judge gave his own opinion on different points of law. The judges’ views diverged widely on the applicability of Article 62(1) (f) of the Constitution. Justice Khosa declared that provisions of articles 62 and 63 could be applied to the public conduct of a person affecting others rather, but not his private conduct so long as it did not affect the general populace. Justice Khosa relied on a judgment written by SC Justice Qazi Faez Isa during his time as chief justice of the Balochistan High Court. Justice Gulzar Ahmad also agreed with Justice Isa’s older interpretation.
Incidentally, Justice Khosa, Justice Ahmad, and Justice Isa are three of the next four chief justices of Pakistan.
“If honesty in public office holders is a moral issue, one need not be apologetic about enforcing such a constitutional obligation, and if the people start ignoring moral prerequisites in public life, there would be no better forum than the courts to insist upon the values and ethos of the Constitution. We must not forget that the so-called moral provisions of articles 62 and 63 are meant to be enforced even against those who claim to have popular support or who have already demonstrated their popular endorsement and, thus, popular support or endorsement of the person concerned has absolutely nothing to do with enforcement of those provisions of the Constitution”, says Justice Khosa in his note.
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However, Justice Ejaz Afzal Khan, Justice Sheikh Azmat Saeed and Justice Ijazul Ahsan differed with Justice Khosa’s view and held that violations of legal obligations or breaches of law were necessary for the applicability of Article 62 (1) (f). They believe that honesty, under the law, should be restrictively gauged through the lens of the fulfilment of legal obligations rather than morality.
These three judges also opined that the SC can only decide matters under Article 184 (3) of the constitution on the basis of admitted facts. In view of the same principle, a three-member bench disqualified Nawaz Sharif on July 28 on the basis of concealment of an asset in the documentation submitted alongside his nomination papers for the 2013 general elections. Interestingly, the bench, instead of voiding the election, disqualified Nawaz Sharif under Article 62 (1) (f) of the constitution.
Legal experts believe that the SC’s July 28 verdict will also tighten scrutiny of asset details of parliamentarians and that any parliamentarian can now be disqualified by the SC under Article 184 (3) at any time on just on the basis of the omission of an asset detail.
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Senior lawyers say that the SC should have shown judicial restraint by not exercising the jurisdiction of quo warranto in this case. Even if the bench was determined to oust Nawaz Sharif, he should only have been de-seated under section 76-A of The Representation of People Act (ROPA), 1976, said a senior lawyer. Now, the deposed PM has been disqualified under Article 62(1) (f), wherein disqualification has been assumed to be for life.
The Sharif family’s legal team deliberately avoided raising the length of disqualification before the five-judge bench. This legal question is still pending in the Sumaira Malik case, where a decision should be forthcoming soon.
Senior lawyers are also debating whether the same principle of disqualification will be applied in Hanif Abbasi’s case against PTI chief Imran Khan, and, possibly even more significantly, will the superior judiciary start the process of across-the-board accountability of all institutions.
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