Paving way to throne

The reports of a possible return of ex-prime minister and Pakistan Muslim League-N supremo Mian Nawaz Sharif from London, where he is in self-exile, have prompted the Supreme Court Bar Association to approach the country’s highest court against his lifelong disqualification in the Panama Papers case and a constitutional petition to this effect has already been drafted.

The legal experts believe that this lifelong ban is a major impediment in the way of Nawaz Sharif to contest general elections.

The petition, the copy of which is available with this scribe, will soon be filed through Muhammad Ahsan Bhoon, who is the President of the Supreme Court Bar Association and is also a Petitioner in the instant Petition, invoking article 184(3) of the Constitution in public interest.

The petitioner has prayed to the Supreme Court to declare that the declaration by a court of law under Article 62(1)(f) only applies to the election under question and does not entail a perpetual/lifetime bar.

It has been further requested with the court to declare that the proceedings/declarations under Articles 184(3) or 199 of the Constitution do not constitute declarations by a court of law, as per the principles expounded by the SC.

It may be mentioned here that a five-member bench of the Supreme Court on July 28, 2017 had disqualified Nawaz Sharif for being dishonest about his financial matters. The judges ruled that Nawaz Sharif had been dishonest to the parliament and the courts in not disclosing his employment in the Dubai-based Capital FZE company in his 2013 nomination papers, and thus, could not be deemed fit for his office.

“It is hereby declared that having failed to disclose his un-withdrawn receivables constituting assets from Capital FZE Jebel Ali, UAE in his nomination papers filed for the General Elections held in 2013 in terms of Section 12(2)(f) of the Representation of the People Act, 1976 (ROPA), and having furnished a false declaration under solemn affirmation respondent No. 1 Mian Muhammad Nawaz Sharif is not honest in terms of Section 99(f) of ROPA and Article 62(1)(f) of the Constitution of the Islamic Republic of Pakistan, 1973 and therefore he is disqualified to be a Member of the Majlis-e-Shoora (Parliament).”

The same bench had also dismissed a review petition in November 2017 filed by Nawaz Sharif seeking overturn of his disqualification, ruling that no new arguments presented. It Said ex-PM tried to fool parliament, court and people by being ‘evasive, non-committal’.

Later, the verdict of a five-judge bench of the apex court ─ headed by CJP Nisar had changed the political landscape of the country. The bench on April 13, 2018 had ruled that the disqualification handed down under Article 62 (1)(f) of the Constitution is for life. The bench had issued its verdict on 17 appeals and petitions, challenging the length of disqualification under Article 62(1)(f) for possessing fake degrees. Justice Sheikh Azmat Saeed, Justice Umar Ata Bandial, Justice Ijazul Ahsan and Justice Sajjad Ali Shah were the other members of the bench. It was a great setback for Nawa Sharif as it ended his political career.

Ahsan Bhoon says in the petition that a mere glance at article 62(1)(f) makes conditions for qualifications for membership of Parliament very clear.

It says, a person shall not be qualified to be elected or chosen as a member of Majlis-e-Shoora (Parliament) unless-

(f) he is sagacious, righteous and non-profligate, honest and ameen, there being no declaration to the contrary by a court of law;

The petitioner raises the question in the petition that how can a lifetime bar be read into Article 62(1)(f) of the Constitution when the plain language of the article does not stipulate so. He believes that there are various questions of public importance that are intertwined with the enforcement of fundamental rights in Pakistan, rule of law and a functional democracy.

The petitioner has asked the Supreme Court for determination of the following questions of public importance, with reference to the enforcement of fundamental rights. He says the lack of clarity regarding the procedure for a declaration under Article 62(1)(f) continues to pose an obstacle to Article 17(2)’s constitutional protection to citizens at two stages:

1. On the one hand, as a consequence of this, the electorate’s choice of candidates to choose from is restricted. This is also an erosion of the electorate’s “right to vote”, which has been held to be a fundamental right by Supreme Court.
2. On the other hand, an excessively punitive and restraining interpretation of Article 62(1)(f) deprives potential candidates of their right to contest elections and form a government even after the rectifications have been modelled.
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In the case of Sami Ullah Baloch, while holding that a court has “no jurisdiction to read into the Constitution”, the Supreme Court has nonetheless read lifetime disqualification into Article 62(1)(f).

SC, however, modified its judgment in Abdul Ghafoor Lehri case slightly to hold that the declaration would remain in effect for as long as the judgment was to remain effective. This conclusion is, therefore, against the principle that the Supreme Court has cited. This Court has a duty to preserve and protect fundamental rights. However, reading in a lifetime disqualification into Article 62(1)(f) has had the opposite effect on rights under Article 10-A, without a clear reasoning to that effect, the petition read.

This Court has also held that a civil declaration under Article 62(1)(f) would result in a lifetime disqualification, while a criminal offence would lead to a temporary bar.  The difference of standards of proof in civil and criminal proceedings has also not been addressed as the offence is resulting in a lesser punishment i.e. five (5) years’ disqualification, whereas a civil declaration resulting in a higher punishment i.e. lifetime disqualification.

He says for the disqualification to attain permanence, the declaration by a court of law referred to in Article 62(1)(f) of the Constitution must be given after the recording of evidence and cannot be given in summary or inquisitorial proceedings.

It is further submitted, with particular reference to the proceedings under Article 184(3), that no right of appeal is afforded to a person against whom a declaration is given by the SC. It has consistently been held by this Court that one right of appeal is intrinsic to access to justice. With no right of appeal, a person against whom a declaration under Article 184(3) is given is left with no adequate remedy to vindicate himself.

When contacted, a senior lawyer Azam Nair Tarar said a five member bench of the SC had interpreted article 62(1)(f) of the constitution, ruling that disqualification would be life time but a larger bench of more than five judges could overturn the judgment of five member bench. He said disqualification under the said article should be for one time or a for a certain time, adding that lifelong disqualification is bit harsh. When asked, he said a favoutrable decision in SCBA’s petition would not end the all legal hurdles of Nawaz Sharif but would, certainly pave a way for him to return Pakistan.

Shamimur Rehman Malik, former secretary Supreme Court Bar Association, commented that in July 2018 Nawaz Sharif was also convicted by accountability court in the Avenfield properties corruption reference filed by the National Accountability Bureau (NAB). He was handed 10 years as jail time for owning assets beyond known income and 1 year for not cooperating with NAB.

In December 2018 an accountability court at Islamabad had convicted former prime minister and sentenced to seven years in prison in Al Azizia case while the former PM was acquitted in Flagship corruption reference.

However, the Islamabad High Court had granted him bail after suspending his conviction in two cases. He believes that after controversial video tape of accountability court judge Arshad Malik the cases would be remanded to the trial court for retrial and during that period his earlier conviction has no legal significance. For getting any relief from the court of law, Nawaz Sharif would have to come back and surrender before the law enforcement agencies.

But he pointed out Nawaz’s conviction in Avenfield reference was handed down by accountability judge Muhammad Bashir and appeal against it is pending in IHC. He would have to get relief on merit to clear his way to partake in election.