ISLAMABAD: What does non-summoning and non-examination of Prime Minister Nawaz Sharif by the three-member special implementation bench of the Supreme Court imply? The answer to this question will come on Friday when the five-member bench headed by Justice Asif Saeed Khosa will announce its judgment.
Will this panel summon and examine the prime minister if it is going to disqualify Nawaz Sharif unanimously or through a split decision?“It is further held that upon receipt of the reports, periodic or final of the JIT,” (Joint Investigation Team) “as the case may be, the matter of disqualification of respondent No. 1” (the prime minister) shall be considered. If found necessary for passing an appropriate order in this behalf, respondent No. 1 or any other person may be summoned and examined,” is what the April 20 Order of the Court had stated.
This clearly showed that the three-member bench has made it mandatory for itself by using the word “shall” to consider the matter of disqualification of the premier, but had left it to itself by employing the word “may” to summon and examine him or otherwise if it was to pass “an appropriate order” – disqualification - in this behalf.
The three judges’ remarks passed on the concluding day of the five-day hectic hearings on the JIT report exhibited that they would consider the matter of Nawaz Sharif’s disqualification. “We guarantee that it will be examined,” Justice Sheikh Azmat Saeed said. Justice Ejaz Afzal said that the judges are looking at this matter.
Importantly two judges of the earlier bench, Justice Khosa and Justice Gulzar Ahmed, had conclusively declared Nawaz Sharif ineligible under articles 62 and 63, ousting him as the prime minister. For having pronounced their final decision, they had not been included in the implementation bench. Therefore, they are not deeply well-versed with the JIT reports and were not part of the subsequent proceedings held by the three-member bench led by Justice Ejaz Afzal Khan for one week.
A number of lawyers including those who had represented the premier and the Sharif family members in the Supreme Court held the view that the three-member panel was the final authority to reach a conclusive decision, and added that the minority judgments were no more relevant.
They also emphasized that the larger bench became extinct with the formation of the new panel by Chief Justice Mian Saqib Nisar for which a request was made in the Order of the Court. Former Chief Justice Iftikhar Muhammad Chaudhry also articulated the opinion that the three-member bench would hand the final verdict.
Talking to The News, senior lawyer Muhammad Akram Sheikh said as a student of law he believes the constitution of same five-member bench is a bit unusual precedent and he has never witnessed such precedent in past.
“Though it is a prerogative of the Chief Justice of Pakistan to constitute a bench but this has been a tradition and practice that any member of the bench who has already given his verdict is not made part of the said bench. The two judges i.e. Justice Asif Saeed Khosa and Justice Gulzar Ahmed have not been part of the process post April 20 and have not even read the JIT report. Hence it is quite unusual precedent”, he commented.
However, Justice (retd) Shaiq Osmani argued otherwise saying that after the three-member panel will conclude its hearings, the larger bench will assemble once again to deliver a decision. The convening of the five-member bench now to announce the judgment demonstrated that the earlier panel was still alive.
When the new bench had not summoned and examined the prime minister before wrapping up of its proceedings, it had sparked speculation that Nawaz Sharif seemed to have escaped disqualification by the skin of his teeth as the judges skipped to meet the essential prerequisite they had laid down in their April 20 judgment for such an extreme punishment.
The Order of the Court has also provided that on receipt of final report of the JIT the bench may pass appropriate orders in exercise of its powers under Articles 184(3), 187(2) and 190 including an order for filing a reference against respondent No. 1 and any other person having nexus with the crime if justified on the basis of the material thus brought on the record before it.
It is for the bench to choose one of the options – disqualification or filing of a reference. If the special bench went for second option, it obviously would not entail instant disqualification of Nawaz Sharif or any other public office holder. In such an eventuality, a reference will be filed in an accountability court, which will give the prime minister or any respondent the right of appeal to high court and subsequently to the Supreme Court.
It has been widely argued that the prime minister faces a very precarious situation because even if one of the judges of the three-member bench goes for his disqualification, he will be ousted because two justices of the five-member panel had already declared him ineligible.
With the assembling of the five-member bench, it has now become clear that the decision of all these judges will be final, and the view that the three-member panel will announce the final verdict is no more relevant.
Undoubtedly, the prime minister is on the razor’s edge, a situation that he has never faced in his entire political career particularly during his three stints as the Chief Executive of Pakistan.
