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September 14, 2017



Will SC decide life ban question once and for all

ISLAMABAD: Will the question whether or not deposed Prime Minister Nawaz Sharif stands disqualified for life from contesting a public office be also settled once and for all by the five judges of the Supreme Court while deciding the instant review petitions?


The issue briefly cropped up during the arguments of former premier’s principal lawyer Khawaja Haris, who articulated that his client has been imposed a heavy penalty -- life ban -- without fair trial and due process. A judge then asked him to cite the case law which specified the life ban in case of disqualification of an elected person under Article 62(1)(f). The lawyer may quote some superior court judgments in this connection.

Meanwhile, two remarks made by Justice Ijazul Ahsan, the monitoring judge, instantly drew attention and created a stir in some minds. When Khawaja Haris impressively argued that Nawaz Sharif was disqualified under the constitutional provision on the charge of non-declaration of his salary from his son’s Dubai-based company in his nomination papers for the 2013 general elections, the judge asked the lawyer whether he is saying that if a poor man is involved in a “theft” of 10,000 dirhams, the offender should be punished but there will be no problem if some mighty, billionaire commits such kind of theft.

However, when Khawaja Haris pointed to the word “theft”, the judge stated that it should be re-phrased as non-declaration of 10,000 dirhams.

When the lawyer was arguing against the disqualification on a minor ground, Justice Ijazul Ahsan remarked that the reason behind the ineligibility was just a tip of the iceberg and asked whether Khawaja Haris wants the iceberg to be exposed. However, it is a fact that the “iceberg” whatever it is in the judge’s view was not under discussion as it found no mention in the verdict as the reason behind Nawaz Sharif’s disqualification because he was ousted for not declaring the “receivable” salary that was described by the three justices as his asset.

The question of ban for life or for a specific period on an elected person, disqualified by the Supreme Court the way Nawaz Sharif was thrown out, from vying for a public office is pending disposal before another larger bench of the highest judicial forum since long. After Nawaz Sharif’s ineligibility under Article 62(1)(f), a vociferous public debate was held in which some opined that the disqualification under this provision entails life ban while others came out with the opposite view.

But it is without a doubt that the Constitution is silent on the duration of ineligibility. One lawyer stated that while nothing has been provided in the basic document or any law in this regard, why anyone including the ex-premier should be subjected to the most severe punishment – life ban. This silence should benefit the person affected.

However, Articles 62 and 63 do fix the period of disqualification imposed by courts on different grounds like for example on contempt of court as happened in the case of former Prime Minister Yousuf Raza Gilani.

Justice (retd) Iftikhar Cheema had been unseated by the Supreme Court under the Representation of People Act (ROPA), 1976 for non-declaration of a certain property. Immediately after his ouster, he fought the by-election for the same seat of the National Assembly. This meant that his unseating was just one-time, having no adverse implication in future.

Khawaja Haris raised compelling objections to the judgment that disqualified his client as the premier and a member of the National Assembly on July 28. Whether or not they were impressed would be demonstrated in their verdict on the review petitions. However, he isn’t having a smooth sailing.

He assailed the absence of fair trial, inclusion of three judges, who were part of the five-member panel, in the special implementation bench, nomination of the monitoring judge for supervision of the proceedings of the accountability court and the National Accountability Bureau (NAB) on preparation and filing of references against members of the Sharif family, presence of two justices, who had handed down their final minority verdict, in the bench again, etc.

Khawaja Haris asserted that Nawaz Sharif should have been issued a show-cause notice to explain himself and given the chance of a fair trial. In fact, it had been written in the majority judgment delivered on April 20 while constituting the Joint Investigation Team (JIT) that if any order was passed against the then prime minister, he would be summoned and examined. The three judges skipped this element and disqualified him without giving him an opportunity to clear his position vis-à-vis the issue of salary.

The lawyer stressed that the appointment of the monitoring judge was in violation of the petitioners' fundamental rights. No past examples can be found of the decision to name a judge the supervisory justice, he stated. Through its judgment, the court itself has become a complainant in the case.

He raised questions over the July 28 verdict and argued that the five-judge larger bench was not competent to deliver the final order as it was not properly constituted. The five judges were not authorised to give this verdict.

Khawaja Haris also expressed his reservations over the praise of the JIT members by the bench to which Justice Sheikh Azmat Saeed said they had also commended him. “My praise can be expunged from the judgment,” he volunteered, but the judges did not agree.

His arguments apart, Justice Asif Saeed Khosa made it clear that the contents of the majority and minority judgments, declaring Nawaz Sharif ineligible, were different, but both reached the same conclusion that the former prime minister stands disqualified.