Nawaz challenges disqualification

ISLAMABAD – Former prime minister Nawaz Sharif on Tuesday filed three separate petitions in the Supreme Court to review and stay further implementation of the July 28 verdict in Panama Papers case that resulted in his disqualification.

These petitions sought dismissal of applications of Pakistan Tehreek-e-Insaf chief Imran Khan, Awami Muslim League chief Sheikh Rasheed and Jamaat-e-Islami chief Sirajul Haq.

The petitions filed by Nawaz Sharif’s lawyer Khawaja Haris presented a number of reasons to justify his claims and appeals.

In January 2017, a five-member bench had clubbed constitutional petitions of Khan, Sheikh and Siraj, and heard them for two months. On April 20, the bench announced a 3/2 split decision.

Two judges – Justice Asif Saeed Khan Khosa and Justice Gulzar Ahmed – had disqualified Nawaz Sharif under 62(1)(f) of the Constitution and section 99(f) of the Representation of the People Act, 1976 “for lack of honesty”. The basis of their judgment was the discrepancies in ex-PM’s speeches and in the statement of his children.

However, the other three judges preferred further investigation and constituted a six-member Joint Investigation Team for the purpose.

After the receipt of the JIT report, the five-member bench assembled again, heard arguments for one week and announced the final verdict on July 28, disqualifying Nawaz as PM under the same article of the Constitution and section of the ROPA.

But this time, the reason for his disqualification was declared to be the non-disclosure of un-withdrawn receivable income from Capital FZE Jebel Ali, UAE – a firm of his son Hassan Nawaz.

Besides that, the bench directed the National Accountability Bureau (NAB) to file three references against Nawaz Sharif and his children as well as Finance Minister Ishaq Dar.

JIT overstepped authority

The former prime minister has contended in his pleas that the July 21 judgment is erroneous on the face of the record as it omits to take into account the fact unambiguously established from the contents of their report that the members of the JIT did, indeed, considerably overstep the authority conferred on them.

No demand for disqualification

The review petition contended that the disqualification of ex-PM under Section 99(f) of ROPA and Article 62 (1)(f), for non-disclosure of his un-withdrawn income from Capital FZE in his nomination papers for 2013 general elections also suffers from an error apparent on the face of the record. The disqualification of Nawaz was not included in any of the constitutional petitions, the appellant pointed out.

ECP is right forum

He said that the apex court, instead of deciding non-declaration of the asset under Article 184 (3) of Constitution, where there is no appeal against the order passed under this article, should have referred the matter to the ECP to be dealt under Section 76A of the ROPA.

Right to fair trail, appeal denied

He stated that according to Pakistan vs The General Public (PLD 1989 SC 6) “barring the right of appeal is against the injunctions of Islam”.

Khawaja Haris said that no notice for disqualification of the petitioner was ever issued by the top court, nor the petitioner was called upon to make any submissions on the jurisdictional or legal aspects of this issue.

The former PM said that the provisions of Article 62 (1)(f) could not be invoked against him without holding a regular trial and providing him full opportunity to lead evidence in support of the facts stated in the written submissions.

Defendant statements taken partially: The factual position submitted by the petitioner in his written submissions regarding salary was not considered in its entirety that “in January 2013, when Hassan Nawaz shared his decision to wind up the company, then Nawaz Sharif categorically told him that he did not intend to nor would claim any salary from the company” has not been adverted to at all in the final judgment.

Salary can’t be considered asset: He said even if it be presumed, though without conceding, that the salary from Capital FZE was a “receivable”, this, per se, does not constitute this salary as part of his assets.

He stated that so far “salary” of Sharif is concerned, being unrealised, it could only be considered to constitute an asset in the form of income by applying the Accrual Method. However, the term “salary” envisaged by Section 12 (2) of the Income Tax Ordinance, 2001, is in terms of actual receipt, and not in terms of accrual only.

The definition of the term “asset” relied upon by the august court is not supported by any of the editions of Black’s Law Dictionary, nor is the definition so relied on as per standard legal, business, and/or other dictionaries.

The petitioner has neither received any salary nor intended to claim it, therefore, it cannot be inferred that he acted dishonestly in omitting to mention such salary as an asset in his nomination papers.

Omission in nomination papers: “The omission to mention un-withdrawn salary by Nawaz Sharif in his nomination papers could not, in any case, per se lead to a declaration in terms of Section 99 (f) of ROPA and Article 62 (1)(f), without first ascertaining whether such omission was deliberate or with an ulterior motive, or merely inadvertent, accidental or due to a misconception or misunderstanding of law or fact,” he said.

2 judgments in 1 case: There is no legal or jurisprudential principle on the basis of which two judges of five-member bench could have reserved for themselves the right or jurisdiction to associate themselves in any part of the proceedings initiated on the basis of an Order which they had, categorically and in no uncertain terms, recorded their unequivocal dissent after they had rendered a final judgment on April 20.

He said by signing the final order the two members of the “bench” have actually passed two final judgments in the same case, which is unprecedented in the judicial history.

The final order could not have been passed by the five-member bench when two of its members had not been associated in any manner in the actual hearing of the case subsequent to the submission of the JIT report, the petitioner said.

NAB monitoring against trichotomy principle: The petitioner said that the monitoring of accountability court proceedings is a brazen violation of his and his family members’ fundamental right to fair trial as embodied in Article 10A of the Constitution.

He said that assumption of such powers by the apex court is repugnant to the spirit of the principle of separation and trichotomy of powers. It is also violative of Article 175 (2) and 175 (3) of the Constitution, he added.

JIT appreciation to influence further trials:

The ex-PM counsel said that the appreciation and commendations of the JIT members tantamount to foreclosing the petitioner’s right to challenge the quality, fairness, independence and legality of the investigation, carried out by the JIT members and/or any further investigation that may be conducted by the NAB and to establish the malafide and gross illegalities committed by the JIT members and/or the NAB authorities.

Source: The Nation