close
Thursday March 28, 2024

Nawaz disqualification period remains undecided

By Tariq Butt
November 10, 2017

ISLAMABAD: The question whether or not the Supreme Court-sanctioned disqualification of ousted Prime Minister Nawaz Sharif to contest an election is for life has been left open by the highest judicial forum in its detailed judgment on his review petition.

The point had found a cursory mention in the arguments of Nawaz Sharif’s lead lawyer Khawaja Haris but it had not been pressed for final adjudication. Thus, the former prime minister did not want settlement of this question by the same bench, which keeps attracting disapproval from him.

Now, he can file nomination papers to fight for a National Assembly seat, and if they are rejected on the grounds that he was permanently disqualified by the apex court, the matter will ultimately land in superior courts for an authoritative interpretation of Article 62(1)(f) under which Nawaz Sharif was declared ineligible.

Prominent legal experts are divided on the duration of disqualification of a person under this constitutional provision, which is silent on the point. Some say it is perpetual while others hold the opposite view. Legal minds have asserted that since there is no mention in Article 62(1)(f) of the length of ineligibility, the assumption is that it is for life as the periods for all other disqualifications have been clearly noted in the Constitution.  A petition on the silence of Article 62(1)(f) about the duration of ineligibility is pending before a larger bench of the Supreme Court for disposal. It has been filed by a Balochistan lawmaker, who had been ousted under the same provision.

A reading of the Nov 7 detailed judgment on the review petition makes it clear that not a single argument of Khawaja Haris impressed the judges. Hence, there was no relief given to the aggrieved party. Superior courts don’t change their decisions under review.

Disputing the July 28 verdict, the lawyer’s assertions related to denial of fair trial to Nawaz Sharif and his children, treatment of unwithdrawn salary as an asset, the court direction to the National Accountability Bureau (NAB) to file references, attaching much credence to the findings of the Joint Investigation Team (JIT), appointment of monitoring and supervising judge to oversee proceedings in the NAB and accountability court, repugnancy of the principle of tricotomy of powers which is an unchangeable feature of the Constitution, etc.

In a nutshell, there is nothing in the latest ruling for Nawaz Sharif to rejoice or take even a slight solace. The hard-hitting response from him and the PML-N was natural. He commented that the judgment reflected the ire and hatred of the judges and it would add another dark chapter to the history.

The language used in some paragraphs of the judgment is very strong, but the counterattack by the ex-premier and a few other PML-N leaders has been equally strong if not more stringent. Several remarks of the judges made during the hearings, which were not make part of the final decision, have also been severely denounced by them.

At one stage, the judgment considered stepping down by the then prime minister honourable when it said that resignation rather than prevarication in ambiguous terms is more honourable exit if and when anything secretly carried under the sanctimonious gown of leadership drops and gets sighted. Since the prime minister is thought to be the ethos personified of the nation he represents at national and international level, denying an asset established or defending a trust deed written in 2006 in a font becoming commercial in 2007 is below his dignity and decorum of the office he holds, it said and was followed by a Urdu couplet, whose near translation could be: “Don’t talk about this thing and that, just tell us why the caravan was looted; we have no complaint with the passersby, it is a question of your leadership”.

At another point, the judgment said that much higher level of integrity is expected of the holder of the highest elected office. “But to our dismay and disappointment the petitioner has not been fair and forthright in answering any of the queries made during the course of hearing. “Refuge in evasive, equivocal and non-committal reply does not help always. If fortune has throned, crowned and sceptered him to rule Pakistan, his conduct should be above board and impeccable. Whatever he does or says must be res ipsa loquitur. (Thing speaks for itself).” There was neither any need of these remarks nor were they a ground for his disqualification in the July 28 verdict.

Regardless of the political party that rules in a parliamentary democracy, it is the prerogative of the prime minister everywhere in the world to appoint heads of key state institutions including the armed forces. Saying that he picks up his cronies and collaborators is indeed overboard. It is a fact that every premier names chiefs of different organizations, who, in his opinion, can deliver the best and implement his policies. However, superior courts have the powers and authority to scrutinize these appointments and declare them null and void, if and when challenged before them, and they have been doing so.

It was a superfluous observation in the detailed judgment when it was stated that some important institutions were presided over by cronies and collaborators of the prime minister.

The verdict said that Khawaja Haris’ argument that the direction to the NAB to file references on the basis of the material collected and referred to by the Joint Investigation Team (JIT) and such other stuff which may be available to the Federal Investigation Agency (FIA) and NAB or the one which may come before it pursuant to the Mutual Legal Assistance (MLA) requests sent by the JIT to different jurisdictions is an encroachment on the authority of the NAB and violation of Article 175 (2) of the Constitution, could have been given some weight had there been no institutional capture, seizure and subjugation of all the important institutions of the State including NAB, Security Exchange Commission of Pakistan (SECP), Federal Board of Revenue (FBR), State Bank of Pakistan (SBP), National Bank of Pakistan (NBP) and Intelligence Bureau (IB) through the cronies and collaborators of the person at the peak as has been evidenced during the course of hearing.  “We thus with our eyes open and minds awake would not let everything go into the hands of the cronies and collaborators for being taken to a dead end. Once things have been streamlined, they have to be taken to their logical conclusion.”

An important observation in the detailed judgment says the trial court in any case would be at liberty to appraise evidence including the material collected by the JIT according to the principles of the law of evidence without being influenced by any of its observations. “Even otherwise, all the observations made in the judgment, being tentative, would not bind nor would restrain the trial court from drawing its own conclusions from the evidence recorded before it in accordance with the principles and provisions of the law of evidence.”