Daily Times

If you’re fan of cricketing analogies, as Imran Khan most certainly is, the Supreme Court ruling against Nawaz Sharif is just about as “plumb” as it could be.

The Review Petition, filed by Senior Advocate Supreme Court Khawaja Harris, impugns the Judgment on varied legal, factual and constitutional grounds. They are summarised briefly as follows:

(a) After the submission of the JIT Report, only a 3 Member Bench could have taken up the matter of passing an order for disqualification of Nawaz Sharif, as the Minority Judges (Justice Asif Saeed Khosa and Justice Gulzar Ahmed Khan) had already passed their final order. Pointedly, after the JIT submitted its Report, the Minority Judges could not be part of the 5 Member Bench as contemplated by the Supreme Court, as they had dissented with the judgments of the Majority and could therefore not take part in any proceedings as their role was functus officio; legally expired.

(b) Constitutionally, the nomination of an implementation Judge over NAB (ie to oversee the process of filing references against the ex PM and his family), is tantamount to being judge, jury, executioner and Court of Final Appeal, and goes against the right of due process and a fair trail. The Constitution also does not envisage such a role, which will be tantamount to pressuring the Accountability Court/NAB. The Review Petition also alludes to the praises showered on the JIT Members by the Learned Court for compiling a “comprehensive” report which may be indicative of a viewpoint already contemplated that Nawaz Sharif’s disqualification was a foregone conclusion.

(c) The procedure for disqualification of a candidate vying for election is already enshrined in the Representation of Persons Act 1976, where an Election Tribunal and not the Supreme Court determines whether such candidate has inter alia given a false or incorrect statement of assets and liabilities. In such a situation, such person would be given a notice, given the right to a hearing and a subsequent punishment of disqualification. The Supreme Court, by passing judgment of disqualification based on an un-withdrawn salary of the ex PM, using its powers under Article 184(3) of the Constitution, effectively bypassed the trial process and rendered Nawaz Sharif without due legal remedy before the law. Tellingly, the Review Petition averts to the fact that the alleged mis-declaration of assets by Nawaz Sharif was not the basis for the Petitions filed by Imran Khan, Sheikh Rashid and Siraj ul Haq.

(d) The Petition challenges the definition/interpretation of a “receivable” taken by the Supreme Court claiming that the same did not exist in present or previous editions of the Black’s Law dictionary and submitted that the matter was subject to various interpretations, which on the basis of settled precedents, should have been decided in favour of Nawaz Sharif. Furthermore, the definition of a “Salary” is provided under the Income Tax Ordinance, 2001 which envisages it to be only accrued, not withdrawn.

It is imperative to distinguish, right from the outset, a review from an appeal under law. Review proceedings are pursuant to Article 188 of the Constitution. Supreme Court settled precedents have held that reviews are not about rehearing the main case –but are, instead, mandated to correct errors of fact law that materially affect the judgement of the case. The word “materially” is not used lightly here.

The jurisprudence envisages that the Court has already provided a reasoned, deliberate judgment on the facts and the law and would be disinclined to revisit its reasoning further unless blatant errors are present in the judgment, which if not rectified would lead to manifest injustice. The principle is thus that while a re-arguing of the case would be futile – a specific error of facts and law overlooked by the Court would merit grounds for a review.

In addition, any demand to fix the Review Petition before a bench other than the 5 Member Bench may also receive short shrift by the Apex Court. It was the latter that had held in a review filed against the judgment awarding capital punishment to Mumtaz Qadri (reported as PLD 2016 SC 146) that a party to a case could not claim or demand that its case be heard by any number of judges as it has no say on the constitution of any such Bench of the Supreme Court.

The limits of Supreme Court’s powers under Article 184(3) cannot be determined in a courtroom. This is a task for legislative assemblies and can be accomplished through appropriate constitutional  amendments

The million dirhams question subsequently is: does the basis provided in the Review Petitions refer to manifest errors of law and fact in the Judgment? Earlier precedents portray an acute disinclination on part of the Apex Court to change its judgments in review petitions. A recent judgment of the Court (reported as 2017 SCMR 580) was only overturned in review when the court missed a glaring factual detail, which ultimately changed the entire dimension of the case. This however, clearly appears to be the exception rather than the norm as there is a litany of review petitions spanning decades that have been dismissed and consigned to the purgatory of the Supreme Court record room.

Does there appear to be a glaring factual detail missed in the Judgment? Nawaz Sharif and his family’s legal team has repeatedly stressed in the Review Petitions that the Court has amplified its powers granted under Article 184(3) of the Constitution, (which allows the Supreme Court original jurisdiction involving matters of fundamental importance and human rights) to bypass executive institutions constituted to hear such matters in trial, ie NAB, Election Tribunals, the SECP. The Supreme Court in its own detailed notes by each Honourable Judge has alluded to the doctrine of regulatory capture of all such institutions by the ruling Party that prevents impartial proceedings taking place (evidenced by the NAB Chairman refusing to file a reference against Nawaz Sharif and his Family and the SECP allegedly tampering with official records). In any event, objections over the Supreme Court’s overarching role over executive matters will cut little ice with the Judges as previous precedents abound where the Court has delved into and taken cognisance of matters such as fixing the price of sugar, removing heads of regulatory institutions and the multiple Suo Moto actions taken even in commercial arrangements such as the Reko Diq case.

The one factual premise that the Review Petition alleges has grabbed everyone’s attention is the definition of the term ‘asset’, which is not supported by any of the editions of the Black’s Law Dictionary. It may be pertinent to mention that the latter is not a legal document, per se. Rather, it is a valuable resource on which a Court may rely. It will, however, be interesting to see how the Court deals with the matter of quoting the reportedly wrong resource and whether the same can be considered on record as a manifest error. Tellingly, the Review Petitions have also dilated on the issue that the Supreme Court, in its Judgment treated the mis-declaration of Capital FZE’s un-withdrawn salary as a strict liability offence, ie one where no evidence of dishonesty or mala fide intent needed to be proven.

Ultimately, if you are a PMLN supporter outraged by the injustice of the Judgment, yet still hope for a dramatic overturning of the same – my advice to you would be not to hold your breath. Likewise if you are betting man and inclined to place a wager on the Supreme Court overturning its earlier decision, the smart advice is to keep your money firmly in your pocket. The question of whether extensive powers of the Supreme Court under Article 184(3) should be restricted is one that cannot be answered in the courtroom, but rather in the legislative assemblies, through appropriate constitutional or legislative amendments. Until such time, it is more than likely that Nawaz Sharif will cool off at home, all the while plotting his next political – as opposed to constitutional – move.

The writer is an advocate and a lecturer of laws

Published in Daily Times, August 19^th 2017.