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October 7, 2019

Superior courts take up pleas of political, judicial nature


October 7, 2019

ISLAMABAD: Superior courts hear important cases of political and judicial nature in the week starting on Monday judgements which will have far-reaching ramifications.

The first case to be heard by a two-judge bench of the Islamabad High Court (IHC) on Monday is related to an appeal filed by deposed Prime Minister Nawaz Sharif against his conviction in a reference by (now suspended) Judge Arshad Malik led accountability court of the federal capital. Clubbed with this plea is the appeal submitted by the National Accountability Bureau (NAB) against his simultaneous acquittal in another case.

The second case that has a lot to do with the judicial front pertains to a slew of petitions, the most significant being the one submitted by Justice Qazi Faez Isa, will be heard on Tuesday by the full court comprising 10 judges of the Supreme Court against the proceedings against the judge in the Supreme Judicial Council (SJC), which were initiated after a presidential reference was filed against him.

The third critical litigation to be heard on Oct 22 is an appeal sponsored by NAB, seeking cancellation of the bail of Pakistan Muslim League-Nawaz (PML-N) President and Leader of the Opposition in the National Assembly Shahbaz Sharif, granted by the Lahore High Court (LHC).

A new element has emerged in Nawaz Sharif’s appeal as he has requested the IHC to review the evidence linked to a controversial video and statement of former accountability judge Arshad Malik before deciding the PML-N supremo’s plea against his conviction.

The ex-premier’s lawyer Khawaja Haris last month pleaded with the two-judge bench to include verified copies of a written press statement and an affidavit submitted to the IHC by Arshad Malik following the release of his video, which was leaked by PML-N Vice President Maryam Nawaz in July.

His counsel has now stated that Arshad Malik's statement "showed one side of the argument" and requested the court to hear the "other side" as well. He appealed to the court to take into consideration the assertions and evidence regarding the judge's video before passing a verdict on his previous appeal.

In December 2018, the former prime minister was sentenced to seven years in prison and fined Rs1.5 billion and $25 million after the then accountability judge Malik found him guilty. Nawaz Sharif is currently in Kot Lakhpat Jail, Lahore, due to this sentence.

At the same time, the main character in the leaked video, Nasir Butt, a London-based PML-N activist, has approached the IHC along with documents, which included notarised copies of the video’s audio transcript, audio-cum-video transcript, his affidavit attested by the Pakistan High Commission in London, etc. He asked the court to add the documents in the appeal filed by Nawaz Sharif “in order to secure the ends of justice”.

Among other grounds, Justice Qazi Isa’s lawyers are considerably relying on a precedent set by the judgement of the full court comprising 13 justices of the Supreme Court headed by Justice Khalilur Rehman Ramday, restoring Iftikhar Muhammad Chaudhry, suspended by Gen Pervez Musharraf, to his position. The panel had quashed the proceedings in the SJC against the top judge and ruled that Musharraf's action was illegal, but 10 of the 13 judges had ordered Iftikhar Chaudhry was to be reinstated and that he "shall be deemed to be holding the office and shall always be deemed to have been so holding the same.”

The current full court, led by Justice Umar Ata Bandial, comprises 10 judges out of a total of sitting 16 justices. The other six judges either excused themselves from this panel on their own or recused themselves from becoming part of it. As Chief Justice Asif Saeed Khosa, Gulzar Ahmed and Justice Mushir Alam figure in the SJC, they decided not to join the full court, while Justice Ijazul Ahsan and Justice Sardar Tariq Masood recused themselves after Justice Isa’s lawyer Munir Malik objected to their inclusion in the previous 7-member larger bench.

Justice Isa being a party in the litigation, who is accused of misconduct by not disclosing his family members’ London assets, is not eligible to be part of the full court, which has been formed after the 7-justice bench issued such a direction before it stood dissolved because of the recusal of two of its members.

This order had stressed the importance of interpretation of articles 211 and 248 of the Constitution. The two provisions deal with “bar of jurisdiction” and “protection to president, governor, minister etc.” Article 211 says the SJC proceedings, its report to the president of Pakistan and the removal of a judge under Article 209(6) shall not be called in question in any court.

Article 248 says the president, a governor, the prime minister, a federal minister, a minister of state, the chief minister and a provincial minister shall not be answerable to any court for the exercise of powers and performance of functions of their respective offices or for any act done or purported to be done in the exercise of those powers and performance of those functions.

On February 14, this year, the LHC granted bail to Shahbaz Sharif, who had been arrested by NAB on October 5, 2018, in the Ashiana-i-Iqbal Housing Scheme and Ramzan Sugar Mills cases. He was charged with misuse of authority as the chief minister of Punjab by unlawfully assuming powers of the board of directors of the Punjab Land Development Company (PLDC), and awarding a contract to an ineligible proxy firm that resulted in the failure of the housing scheme.