Review petition decision to wrap up high-profile Panama case

ISLAMABAD: The hearing of review petitions of deposed Prime Minister Nawaz Sharif, his children, his son-in-law and Finance Minister Senator Ishaq Dar by the Supreme Court will marks  the apparent wrapping up of the high profile Panama case that led to the ouster of the premier.

At the judicial level, the intense noise that engulfed Pakistan since April last year in the wake of the Panama Papers disclosures may come to end with the disposal of the review petitions. But at the political level the deafening rukus and tussle will not die down any soon because of the political nature of the case.

The row over the number of judges of the bench, hammered by the former prime minister and others, will surface during the proceedings as they have disputed the referral of these review pleas to the three-judge panel, previously known as the special implementation bench.

They have pressed that their review petitions should be independently heard by the original five-member bench and the three-justice panel due to different judgments delivered by them. Lawyer Salman Akram Raja, representing Maryam, Hussain and Hassan, has now filed an application praying that his review petition should be heard by the five-member bench that had been headed by Justice Asif Saeed Khosa as this panel had handed down the July 28 judgment. He stated that the review petition against the verdict of a larger bench can’t be heard by a smaller panel of judges.

It is not known and it will not be prudent to hazard a guess about the period the proceedings on the review petitions will consume, but generally such pleas are decided without taking much time as these are not re-hearing of the case. The focus of arguments of the lawyers is always on the errors floating on the surface of the record, calling reversal and recall of the impugned judgment.

An exhaustive public debate has been held on the July 28 verdict in which leading lawyers have expressed a variety of contradictory views and opinions. Most of them took exception to the sole ground on which Nawaz Sharif’s disqualification was based.

He was driven out of office for not showing the “un-withdrawn salary,” which the court declared as an asset on the basis of its dictionary meaning, from his son’s Dubai-based company in his nomination papers for 2013 general elections.

Some legal experts argue that a fundamental turnaround of the original judgment is not possible if the judicial history is any guide. The grounds for review are always very restricted, and only gross mistakes are pinpointed in the earlier decision.

Unless there is a floating error in the previous verdict that the court also accepts in reconsideration, the review can’t be helpful. In normal  circumstances it is extremely rare that a court would essentially change its previous verdict.

In his review petition, former premier’s lawyer Khawaja Haris listed at least 24 critical grounds and reasons seeking the reversal of the July 28 judgment. He mentioned that Nawaz Sharif was ousted while quoting the Black’s Law Dictionary but none of its editions supports the definition of an asset relied upon by the court. Black’s Law Dictionary is considered as the most credible document in the world.

Khawaja Haris argued that 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.

According to the petition, the Supreme Court had already held that “barring the right of appeal is against injunction of Islam”. Even if it be presumed that the court did have the jurisdiction to entertain 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.

It also said that the ground for disqualifying 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. 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. The Constitution does not confer upon the court any jurisdiction to superintend and oversee the proceedings of the court constituting subordinate judiciary, the petition said adding that the 5-member bench’s request to the chief justice for nominating a judge to supervise and monitor implementation of April 20 verdict and oversee the proceedings conducted by the National Accountability Brueau (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.