Daily Times

Lahore: Legal experts note that the majority opinion in the April 20 verdict had been reluctant to pass an adverse judgement, like disqualification, or to assume the powers of the election tribunal. However, the subsequent admission as a matter of fact that former Prime Minister Nawaz Sharif held a paid position in a Dubai-based company paved the way for his disqualification under the Representation of People’s Act of 1976 and Article 62 of the Constitution.

Legality of disqualification explained: Lawyer Jahanzeb Sukhera says that when they had constituted the JIT, the three honourable judges had appeared reluctant to assume and exercise the powers of the Election Tribunals. “In view of the April 20 verdict, therefore, it would seem that a matter concerning misstatement in nomination papers would be referred to a tribunal for resolution in accordance with election laws. In fact, the excerpts from the April 20 order reproduced in Friday’s judgement highlight such reluctance,” he says. But, he adds, the former PM’s admission that was entitled to a salary from a Dubai-based company appears to have met Justice Ejaz Afzal’s test of disqualification, based on ‘irrefutable evidence’. Justice Azmat Saeed’s test of ‘legal honesty’ has also become relevant as the court held that Sharif lied under solemn oath when he failed to disclose the asset in question in his nomination papers, he says.

Lawyer Asad Jamal says that in disqualifying the former PM, the Supreme Court full bench has followed the precedent set in fake degree and dual nationality cases. “In these cases, proof of wrongdoing had been established as a matter of fact and was no record,” he says, “Under the ROPA 1976, the former PM had to disclose all his assets. In the SC’s view all entitlements qualify as receivable, regardless of whether they’re to be actually recovered or not. And technically all receivables are assets. Since Sharif failed to disclose all ‘receivables’, the court availed constitutional provision of 62 (1) f in the matter at hand,” he notes.

Lifetime ban?: For Sukhera, the ban on Sharif appears to be for a lifetime. “Though the Constitution stipulates that a person convicted of an offence shall be disqualified for particular time periods, no such limitation exists in case there has been a conclusive finding by a court that a person is no longer Saadiq and Ameen,” he says.

Jamal is clear that there is possibility of a lifetime ban under the statutory law. “Those arguing that the former PM has been or could be disqualified for life are wrong. There’s no such provision on the statute. And without there being a statue providing for such a punishment i.e. lifetime disqualification, it would be contrary to all universally recognised principles of statutory interpretation to suggest that the former PM could be disqualified for life,” he says.

Jamal explains that the former PM can be disqualified for a period up to five years for corrupt practice under the ROPA 1976. Additionally, he can be sentenced to imprisonment for a term which may extend to three years or fine, or both, under Sections 12(2); 78(3)d; 82; 94(2); and 100(1) of ROPA 1976.

Can the former PM appeal the Friday verdict?: Sukhera says the former PM does not appear to have recourse to an appeal to the Friday judgement. “In the April order, the majority opinion had been sensitive to the fact that passing an adverse order (like disqualification) might prejudice the rights of the respondents, as no appeal shall be available against it. The respondents may still be able to opt for a review of the Friday judgement. Provided that there are very limited grounds for review, it cannot be held akin to an appeal,” he says.

Accountability court proceedings: The next important question pertains to the references to be filed in the accountability courts. Can those references lead to criminal conviction for one of the most powerful families of the country? Sukhera says it appears likely. “The JIT has managed to uncover copious amounts of incriminating evidence. Importantly, the NAB law deviates from the general principle of ‘innocent till proven guilty’ because it imposes a presumption of guilt upon the accused after the NAB meets a light burden of establishing that the suspects own assets beyond their means,” he says, “NAB’s burden already appears to have been discharged. Now the Sharifs and others involved in references to be filed will have to establish their innocence. Anything less than that shall land them in jail.”

Jamal explains that the proceedings in the accountability court can yield in conviction and imprisonment for a period up to 14 years besides forfeiture of assets and disqualification for 10 years – a period which will start after his release from prison, Jamal adds.

Concerns over use of Article 62: The legal opinion against the use of Article 62(1)(f) of the Constitution highlights that the provision is vague and susceptible to multifarious interpretations. Thus, in this opinion, the Article does not provide for a good legal standard for qualification or disqualification – a standard not capable of application with mathematical certainty, has no place in law.

Deviation from custom: Sukhera also highlights that the Supreme Court’s decision that the full-bench will announce the verdict was a deviation from the customary practice. “The custom has been that only those judges who hear complete arguments of both parties announce the final decision. Thus, the news came as a surprise on Thursday that the original five-member Supreme Court bench shall announce the final judgment,” he notes, adding that, perhaps, the Sharifs’ legal team was caught off guard, since otherwise all news channels would have also broken the news of submission of objections by them against the constitution of a five-member bench on Friday morning.

Published in Daily Times, July 29^th , 2017.