Three judges’ reason different from two others

ISLAMABAD: None of a plethora of allegations of loot and plunder leveled by the petitioners against the Sharif family became the basis of Nawaz Sharif’s disqualification although the upshot of the judgment of the three-member special bench is the acceptance of their prayer, seeking his ineligibility.

While declaring Nawaz Sharif as disqualified, the two previous dissenting judges - Justice Asif Saeed Khosa and Justice Gulzar Ahmed - had taken their decision on the grounds which are different from the reason on which Justice Ejaz Afzal Khan, Justice Sheikh Azmat Saeed and Justice Ijazul Ahsan based their verdict.

While the main reasons given by the two sets of justices to disqualify Nawaz Sharif are dissimilar, the outcome of their judgments is absolutely the same – ineligibility. Justice Khosa and the three implementation judges’ decision ousted the former prime minister under Article 62(1)(f) of the Constitution and section 99(1)(f) of the Representation of the People’s Act (ROPA), 1976. However, Justice Gulzar Ahmed relied only on Article 62(1)(f) for the disqualification. However, all the five justices signed the additional verdict of the implementation judges.

It will be instructive to first have a look at the original prayers of the petitioners – the Pakistan Tehreek-e-Insaf (PTI), Jamaat-e-Islami and Sheikh Rashid. They had sought ouster of Nawaz Sharif as member of the National Assembly/prime minister and punishment for Maryam, Hussain, Hassan, Ishaq Dar and Capt (R) Safdar for having offshore companies, London apartments and other foreign business and companies, for committing massive corruption and possessing assets beyond means that they got through illegal means and by stealing public money.

In his original petition, Sirajul Haq had not even named Nawaz Sharif a respondent and urged the court to direct investigating agencies to launch a probe into the Panama scandal, arrest the suspected culprits, recover the public money and bring it back to Pakistan because it was illegally taken out to offshore companies. Drifting with the tide as the proceedings progressed, he changed his plea to seek Nawaz Sharif’s ineligibility.

In his judgment, Justice Khosa had “rejected” and found “conflicting and unbelievable” all the “versions advanced by” Nawaz Sharif’s children explaining how the London apartments had come in possession of his immediate family or how these properties had been acquired by it.

He ruled that Nawaz Sharif had not been honest to the nation, to the representatives of the nation in the National Assembly and to the Supreme Court in the matter of explaining possession and acquisition of the relevant properties in London.

As a consequence of the declaration issued regarding lack of honesty on the part of Nawaz Sharif, he has become disqualified from being a member of Parliament in terms of Article 62(1)(f) and section 99(1)(f) of the ROPA and, therefore, he is liable to be denotified by the Election Commission of Pakistan as a member of the National Assembly forthwith with a consequence that he ceases to be the prime minister from the date of denotification.

The judge further wrote that Nawaz Sharif was, and still is a holder of a public office and his children have admittedly been in possession of the London properties since the years 1993 and 1996 when they were his dependents; the value of these properties is ostensibly disproportionate to his declared and known sources of income when his tax returns produced before the apex court are kept in view; Nawaz Sharif has failed/refused to account for these flats and has adopted a mode of complete denial vis-à-vis his connection with those assets which prima facie amounts to failure/refusal to account for those apartments; and the matter, therefore, clearly and squarely attracts the provisions of section 9(a)(v) as well as section 14(c) of the National Accountability Ordinance, 1999 necessitating the National Accountability Bureau to proceed against him and any other person connected with him in that regard.

Justice Gulzar Ahmed, who had also disqualified Nawaz Sharif in his earlier dissenting note, had written that Nawaz Sharif against allegation was made that he and his family own four London flats and the sources of acquiring all these properties have not been declared, there was a duty cast upon him as holder of public office to satisfy the court and the nation (which being their fundamental right) about the true facts regarding the London flats, which he miserably failed to do so and thus what emerges is that he has not been honest and Ameen in terms of Article 62(1)(f) of the Constitution, he held.

Being faced with this scenario, the court, the judge further wrote, cannot be expected to sit as a toothless body and become a mere spectator but it has to rise above screen of technicalities and to give positive verdict for meeting the ends of justice and also to safeguard people’s fundamental rights. It is thus declared that Nawaz Sharif has not been honest and Ameen in terms of Article 62(1)(f) and thus rendered himself disqualified from holding the office of an MNA and ceasing to be the prime minister.

The other three judges ruled that it has not been denied that Nawaz Sharif being Chairman of the Board of Capital FZE was entitled to salary, therefore, the statement that he did not withdraw the salary would not prevent the un-withdrawn salary from being receivable, hence an asset. When the un-withdrawn salary as being receivable is an asset it was required to be disclosed by him in his nomination papers for the 2013 general elections in terms of Section 12(2)(f) of the ROPA, the judgment said adding that where he did not disclose these assets, it would amount to furnishing a false declaration on solemn affirmation in violation of the law, therefore, he is not honest in terms of Section 99(1)(f) of the ROPA and Article 62(1)(f).