ISLAMABAD: The heated debate on whether disqualification under Article 62(1)(f) of the Constitution for life that began following the disqualification of former prime minister Nawaz Sharif briefly surfaced in the Supreme Court on Wednesday.
The issue cropped up when Justice Ejaz Afzal Khan, a member of the five-judge Supreme Court bench that has taken up the review petitions of Nawaz Sharif and his children, asked senior counsel Khawaja Haris Ahmed to cite a precedent for permanent disqualification, when such a decision was handed down under Article 62(1)(f).
“Article 62(1)(f) is a new insertion in the Constitution, with its own implications and connotations that have far-reaching effects,” Justice Khan said, but expressed the desire to hear out the counsel.
The issue came up when Khawaja Haris asked why the apex court had handed down a lasting disqualification against his client in the Panama Papers case for merely receiving a salary as the chairman of Capital FZE, bypassing a fair trial without giving him the benefit of an appeal. This was done even though the petitioners never highlighted Capital FZE in their petition, he said.
Judges wonder if 10,000 dirhams was ‘inconsequential’ amount for billionaire ex-PM
However, Justice Sheikh Azmat Saeed pointed out that judgements regarding the period of disqualification were available though the judge chose not to cite any.
About the disqualification for life on a one-off omission, and that too without sufficient material, the counsel pointed out that in the past the top court had considered “non-disclosure” as an “inadvertent omission”.
The counsel argued that his client was ready to face any reference at any forum, but all he sought was a review of theJuly 28 judgement.
But Justice Ijazul Ahsan asked if the counsel was saying that the 10,000-dirham salary from Capital FZE was inconsequential for Mr Sharif, since he was a billionaire.
Why was his UAE Iqama not suspended if Mr Sharif did not receive any salary, the judge asked, adding that this would mean that a poor man would have to face punishment over concealment, but billionaires could go off scot-free.
“Would the law change its interpretation in view of the financial resources [of the defendant],” Justice Ahsan observed, adding that the court had treaded cautiously while writing the July 28 judgement so that it didn’t prejudice the upcoming trial.
“We have only pointed to the tip of an iceberg — do not complain if you compel us to uncover the entire iceberg,” Justice Ahsan cautioned.
Khawaja Haris cited Section 76A of the Representation of People Act (Ropa), under which the Election Commission of Pakistan (ECP) could declare the election of a parliamentarian void over concealment of facts or non-disclosure of assets, though the member was not disqualified for life.
When an entire mechanism existed under Ropa that also allowed for an appeal, why did the apex court go straight to Article 62(1)(f) of the Constitution, he asked.
The counsel was of the view that the Supreme Court should have referred the matter to a forum for trial under Ropa, in view of the constitutional guarantees provided under Articles 4 and 25 of the Constitution.
Are you saying that this disqualification should not have been invoked in the first place, asked Justice Asif Saeed Khosa.
The counsel, however, argued that matters should be thrashed out first before available forums, because it did not appear to be logical to bypass other processes to merely disqualify a member forever by declaring him dishonest.
“What I am saying is that the Supreme Court did not complete that process, despite the fact that it was available,” the counsel argued, saying that the courts had, on a number of occasions, struck down laws since no appeal was provided under legislations.
In fact, the Supreme Court deprived my client of his right to appeal, which was not correct, the counsel insisted.
“Are you saying that the apex court should not have short-circuited the process by invoking the provision that has serious penal consequences, against which no appeal was provided,” Justice Saeed observed.
In addition, Justice Khan observed that a salary did not mean that the amount should always be in one’s pocket or in the palm of one’s hand, since it always went into a bank account.
But the counsel regretted that the Joint Investigation Team (JIT) had only relied on one document, which dealt with the payment of salaries to company employees.
When Justice Saeed referred to a dictionary definition of the word ‘salary’, the counsel retorted that ordinary dictionaries had many definitions, and wondered why the court had picked one that went against his client.
Justice Saeed, however, reminded the counsel that while hearing the Panama Papers case, the court was not an appellate bench, but was hearing a petition seeking the invocation of the power of quo warranto, which meant that provisions of Section 76A of Ropa did not apply.
The court also recalled that Justice Ahsan had mentioned Capital FZE in his April 20 judgement, saying the matter needed further probing.
On Wednesday, the court also admitted that the petitioner could cross-examine members of the JIT during the NAB trial.
During the hearing, the counsel also questioned the competence of all five judges to announce the final order of the court on July 28, when two were not part of the JIT implementation bench. However, Justice Khosa explained that the conclusion of the five judges on the question of Nawaz Sharif’s disqualification was the same, though their reasons were different.
Published in Dawn, September 14th, 2017