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August 17, 2017

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24 grounds on which SC judgment reversal is sought

24 grounds on which SC judgment reversal is sought

ISLAMABAD: Deposed prime minister Nawaz Sharif’s review petition filed in the Supreme Court listed at least 24 critical grounds and reasons seeking the reversal of the July 28 judgment that disqualified him as member of the National Assembly/premier.

These crucial points, which were not earlier extensively reported or accorded due importance, figured in a multitude of grounds and reasons Khawaja Haris, advocate, noted in the challenge to the verdict.

One, as matter of propriety, justice and fair play, and in due deference to the fundamental right to fair trial, the three justices of the special bench constituted to implement the April 20 majority judgment with respect to the Joint Investigation Team (JIT) inquest, should have recused themselves from passing any decision based on such probe, which was carried out under their oversight and by a group selected/nominated or approved by them, the review petition argued.

Two, the Supreme Court had already held that “barring the right of appeal is against injunctions of Islam”. Even if it be presumed that the court did have the jurisdiction to entertain the Panama petitions, it should have stayed its hands so far as the question of Nawaz Sharif’s disqualification for non-declaration of an asset was concerned, and allowed the matter to be taken up in the first instance by the election tribunal where proceedings alone would assure him his fundamental right to fair trial, and, in case of an order adverse to him, his right to at least one appeal, as mandated by Islamic injunctions.

Three, the ground for disqualifying the ex-premier was not included in any of the constitutional petitions, and, as such, he had never conceded jurisdiction of the court to adjudicate upon this issue.

Four, after the passing and as per the April 20 order, two separate and independent benches should have been constituted: one to implement this judgment to essentially ensure that the JIT members did complete their investigation within 60 days; and the second for receipt of the JIT report once the inquiry had been completed and to pass appropriate orders as well as consider the matter of Nawaz Sharif’s disqualification.Five, the Constitution does not confer upon the apex court any jurisdiction to superintend and oversee the proceedings of the court constituting the subordinate judiciary.

Six, the five-member bench’s request to the Chief Justice for nominating a judge to supervise and monitor the implementation of April 20 verdict and oversee the proceedings conducted by the National Accountability Bureau (NAB) and the accountability court is tantamount to arrogating to the apex court the role of the complainant, investigator, prosecutor, judge, jury and the court of ultimate appeal all at once, which is repugnant to the very basis of the criminal justice system in Pakistan and a brazen violation of Nawaz Sharif and his family members’ fundamental rights to fair trial, equality, life, the principle of due process and dignity of man and even the constitutional norm of separation of powers as sanctified by the top court’s innumerable judgments.

Seven, the directions given by the Supreme Court to the NAB to file multiple references are per incuriam, as these tantamount to, in effect, assuming the functions of the NAB chairman, and the accountability court under the National Accountability Ordinance (NAO), for which assumption there is no sanction of law, rather it is repugnant to the Constitution.

Eight, in fact such assumption of powers is repugnant to the very letter and spirit of the principle of separation/trichotomy of powers, which has been recognized as one of the salient features of the Constitution, and thereby sanctified as immutable and all pervasive in numerous judgments of the superior courts. As such, the directions given to the NAB are per incuriam on this ground as well.

Nine, the apex court may have powers to direct an agency to perform its functions and discharge its responsibilities in accordance with law, but there is no law that vests in it the authority to itself assume the functions of any such agency or institution.

Ten, the direction given to the NAB about references is tantamount to an implicitly unambiguous approval/endorsement by the apex court of the authenticity, veracity, admissibility and reliability of the so-called “evidence” collected by the JIT, or which may be made available pursuant to the JIT’s requests for Mutual Assistance, hence bound to affect the decision of the accountability court in admitting such material in evidence, irrespective of its status in the eye of the law, or the objections that may be taken by the defence in this regard at the trial.

Eleven, even the directions given to the trial court to decide the references within six months from the date of their filing is likely to prejudice Nawaz Sharif’s case before it.

Twelve, the July 28 judgment, issued in terms of Section 99 (1)(f) of Representation of People Act (ROPA and Article 62 (1)(f), is based on “admission” stated to have been made by Nawaz Sharif’s counsel, wherein his employment with Capital FZE and his “entitlement” to salary stand affirmed, albeit with this rider that this salary was never withdrawn. But as held by the Supreme Court in numerous judgments, the admission of a party to a proceeding can be considered against him only if it is taken as a whole, and not by referring to some portions, while ignoring the others.

Thirteen, Article 62 (1)(f) could not be invoked without holding a regular trial and providing Nawaz Sharif full opportunity to rebut any such allegation, and further provides a right of appeal in case any order is passed against him by the election tribunal, the direct assumption of the jurisdiction to adjudicate upon this matter by the top court is, indeed, tantamount to denying him not only his fundamental right to fair trial but also to deny him the right to at least one appeal.

Fourteen, the unrealized “salary” 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 thereof, and not in terms of accrual only.

Fifteen, since there is no appeal provided against the judgment passed under Article 184 (3), and the law has already provided a forum for adjudication and determination of an allegation based on non-declaration of any asset by a returned candidate under Section 76A of the ROPA, and the proceedings envisaged by it inevitably entail not only opportunity to contest any such allegation by providing for issuance of a notice to show cause to him, but also to contest the same by way of leading evidence to rebut any such allegation, and further provides a right of appeal in case any order is passed against him by the election tribunal, the direct assumption of the jurisdiction to adjudicate upon this matter by the top court is, indeed, tantamount to denying Nawaz Sharif not only his fundamental right to fair trial, but also to deny him the right to at least one appeal against any order adverse to him on this count.

Sixteen, the July 28 order is in deviation of April 20 majority judgment, in that it purports to have been passed by 5-member bench and is, as such, coram non judice.

Seventeen, the court direction about JIT members that “their tenure of service shall be safeguarded and protected and no adverse actions of any nature including transfer and posting shall be taken against them without informing the monitoring judge” is also per incuriam, inter alia, as it is violative of Article 175(2), as also the principle of separation of powers that forms the cornerstone of the Constitution.

Eighteen, another direction given in the July 28 order is discriminatory and encourages the NAB to initiate a witch-hunt against Nawaz Sharif and other respondents besides conveying a negative message to, and thereby compromising the independence of the trial judge, who may ultimately try him on the basis of the references to be filed before him on the court directions.

Nineteen, there is no legal or jurisprudential principle on the basis of which two judges of 5-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 clear dissent after they had rendered a final judgment and thereby became functus officio in the case, rather such a course is contradictory to established principles of law and justice, and of legal propriety and jurisprudential practice.

Twenty, the view taken by these two judges in the April 20 decision is of no legal effect, being a minority view, while their subscribing to the July 28 ruling is coram non judice inter alia because they had already become functus officio after rendering their judgments. By signing the July 28 order, the two justices have actually passed two final judgments in the same case, which is unprecedented in judicial history.

Twenty-one, the July 28 ruling could not have been passed by five judges, when two of the justices had not been associated in any manner in the actual hearing of the case subsequent to the submission of the JIT report.

Twenty-two, the question of Nawaz Sharif’s disqualification could only be taken up by the three judges of the special bench, there being no other panel specified for deciding it under April 20 order. Therefore, the July 28 ruling stands vitiated on this ground as well, as the two dissenting judges who have subscribed to the same never formed part of the bench constituted for deciding this vital question.

Twenty-three, as the original bench was to decide disqualification as per April 20 order, this question should have been put up before and taken up for hearing by it and not by 3-member panel.

Twenty-four, factually the 5-member bench misread the record while commending the JIT efforts, in that the team had not prepared any report as per the April 20 Order of Court, inasmuch as the JIT was directed to file a complete report within 60 days, but its report is not only manifestly and glaringly incomplete, the investigation itself suffers from deficiencies of a serious nature, is, on the face of it, sub-standard in material particulars, was conducted in gross violation of law, including violation of Section 21 (g) of the NAO, and by ignoring Nawaz Sharif’s right to be confronted with any incriminating material it may have collected, is reflective of predisposition of the JIT to carry out a roving inquiry so as to implicate him in some wrongdoing or the other, and, as such, did not deserve any commendation and appreciation of its “efforts” by the court.

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