Panama review petitions: Disqualification decision was unanimous: SC

ISLAMABAD: The Supreme Court on Wednesday said the decision to disqualify Nawaz Sharif was unanimous and showed caution but there should not be any complaint, in case the petitioners forced them to uncover everything.

The remarks came as a five-member larger bench, headed by Justice Asif Saeed Khosa and comprising Justice Ejaz Afzal, Justice Gulzar Ahmed, Justice Sheikh Azmat Saeed and Justice Ijazul Ahsan, resumed hearing the review petitions filed by Nawaz and his scions, challenging the July 28 verdict in the Panama Papers.

Justice Khosa observed that the reasons to disqualify Nawaz as prime minister might have differed but the decision was unanimous.At one point, Justice Ijaz told the learned counsel that the apex court judges showed caution while writing the July 28 judgment so that the trial could not be influenced. He said it was just the tip of an iceberg and if the petitioners were willing to compel the court to uncover the whole of it, then they should not complain about the consequences.

The counsel for the former prime minister argued that his client was denied the right to explain his position before unseating him from parliament while invoking Article 62(1)(f) of the Constitution and to a fair trial.

For the purpose of determination of disqualification, his client should have been given an opportunity of fair trial as required by the law, Khawaja Haris, the counsel for Nawaz, said while commencing his arguments.

The counsel contended that before disqualifying Nawaz, the court should have issued him a show-cause notice in order to explain his position before the court.Haris submitted that the apex court did not give considerable course of time on the issue of the UAE-based firm Capital FZE and disqualified his client on the issue of employment, which was against the fundamental right of the petitioner.

Moreover, he objected to the nomination of a judge, who was a member of the implementation bench on the Panama Papers case verdict, entrusted with the task to supervise the investigation, prosecution and trial before the accountability court.

“The appointment of a monitoring judge to oversee the proceeding of the trial court is unprecedented,” Haris said and added no such example could be found.When Haris began objecting to praising the JIT’s performance by the implementation bench, Justice Azmat, another member of the bench, in a lighter tone said at least he was not withdrawing himself from praising the learned counsel (Haris).

Justice Ejaz, however, said they had commended the role of the JIT but its findings would be scrutinised, in case of any criticism, in the trial court which would be at liberty to give its own decision.Justice Ejaz added that the counsels for the respondents – Nawaz and his children – could cross-examine the JIT members during the proceeding of the accountability court.

Advancing his arguments, Haris also questioned the composition of the five-member bench for the announcement of the final judgment on July 28, which disqualified his client and ordered NAB to file references against the Sharif family.

The counsel contended that the final verdict by the five-judge bench was not right as two of its members had already given their verdict.“There was no mention of a larger bench in the April 20 judgment and the decision should have been made by the same three-member bench which heard the JIT investigation,” Haris argued.

Justice Ijaz, however, observed that verdict of the two judges [on April 20] was not challenged, thus it could be inferred that it was accepted. But Harris replied that it wasn’t challenged because of being a minority judgment.

“You are saying to the author that what you wrote, you don’t mean it,” Justice Khosa asked.Haris contended that a five-member bench could not have given the July 28 judgment.Justice Azmat remarked that the final Panama case verdict was to be decided by the same five-member bench which had given the April 20 judgment. He said the court had formed an implementation bench but the decision was to be ultimately made by the five-member bench.

The implementation bench was to work as per the directions provided by the five-member bench, he added.Justice Khosa observed that the final July 28 court order was as a whole based upon the findings of the three members of the bench.

“Even judges with minority view can sign the final order of the court and this is a normal practice and this is what happened in this case,” Justice Khosa remarked and cited some of the apex court judgments, including the judgment given in the Houbara Bustard case.

Haris submitted that the two judges were not part of the proceedings of the special implementation bench where the JIT’s findings were submitted.Justice Khosa, however, reminded the counsel that the two judges, who favoured the disqualification of the respondent on April 20 verdict, did not add anything in the July 28 judgment.

Justice Gulzar asked Haris that the July 28 judgment was the continuation of the order passed by the five-member bench on April 20. “Kindly read the July 28 judgment which starts with ‘this is in continuation of the April 20 verdict’,” he added.

On the issue of FZE, Haris argued that the court did not assess whether the former premier intentionally concealed his assets or they were not revealed due to a mistake.At this, Justice Ijaz questioned as to if a poor person stole 10,000 dirhams, he would be sent to prison but when a billionaire did the same he would not face the similar consequences.

“If the respondent (Nawaz) did not get any salary, then why his iqama was not suspended,” Justice Ahsan inquired.Haris contended that it was unfair to disqualify someone for life under Article 62(f) for not disclosing a salary. He said Article 62(1)(f) was a new insertion in the Constitution, while there was a mechanism given in the Representation of People Act 1976 (ROPA) under Section 76 (a).

“Section 76(a) does not disqualify a person but under this clause the election of a person to parliament can be declared void for not disclosing his/her assets.”He contended that the court could have declared the former premier’s election to the National Assembly void instead of disqualifying him for life.

Justice Ejaz observed “the salary of an employee goes to his/her account and that is a law in the UAE,” but Haris contended that the JIT did not mention the evidence as to whom the salaries went.

Justice Ejaz quickly reminded the counsel that it was his own argument that the respondent (Nawaz) being the chairman of the FZE was entitled to the salary of 10,000/ dirhams.

Justice Ijaz asked the learned counsel as to whether the respondent’s Iqama was suspended when nothing was in the account which was a requirement of the law.Later, the court adjourned further hearing till today (Thursday) when Haris is expected to conclude his arguments.