ISLAMABAD - Former prime minister Nawaz Sharif on Tuesday opted not to become a party to the proceedings of a case which seeks to determine the time period of disqualification for an office-holder under Article 62(1)(f) of the Constitution.

The constitution itself is silent about the about the time period of the disqualification under this article, and there have been different suggestions regarding the matter since the disqualification of Nawaz under the same article in July last year.

A three-member bench headed by Chief Justice Mian Saqib Nisar is now hearing the petitions against the Election Act 2017, which among other things have raised the question of interpretation of Article 62(1)(f).

During yesterday’s hearing, the chief justice said they had issued Nawaz a notice to join the proceedings and also notified it publicly, but he chose not to become a party to the case, so they would proceed against him ex-parte.

The top judge said the former PM could join the proceedings any time but the “clock will not be reversed”.

In his response submitted to the court, Nawaz Sharif said the matter had far reaching political implications and his participation could prejudice the case of many other aggrieved parties on whose motion the court has taken up it.

The ex-PM added that if he had decided to participate in the proceedings, he would have asked Justice Saeed and Justice Ahsan to recuse themselves as they had served on the bench that disqualified him in the Panama Papers case.

Senator Raja Zafarul Haq appeared before the bench and said that he was representing the Pakistan Muslim League-Nawaz (PML-N). Salman Akram Raja advocate would argue on behalf of the PML-N.

Detailed reply of Nawaz

Nawaz Sharif in his reply said: “My representative Azam Nazir Tarar appeared before the court on January 31, 2018, and on my request sought time, enabling the undersigned to consult the party leadership since the matter is of far-reaching consequences relating to the body politics of the country. The court was pleased to accede to my request.

“It is respectfully submitted that if I were to be a party to the original proceedings, I would have requested Justice Azmat Saeed Sheikh and Justice Ijaz-ul-Ahsan, to kindly recuse themselves from the bench as they have already rendered a judgment regarding the issue of my qualification as a member of Parliament and have expressed their opinions about my person on a number of occasions, therefore, it would be unfortunate if they were to again decide on the issues keeping the person in their view.

“I deliberated upon the issue with party leadership and it feels appropriate that since this court has taken up the matter on the motion of many other aggrieved parties, having stakes in the issue, therefore, my joining the proceedings at this juncture before this bench may prejudice their cases. Therefore, in peculiar facts and circumstances, I don’t wish to be part of the proceedings.

“It is well settled by now that to take part in the elections process is a fundamental right and, therefore, no perpetual disqualification can be imposed on someone by interpreting Article 62 of the Constitution. A time limit could have been provided by the Parliament but since it has not been done so, the issue of qualification under Article 62 is confined only to the election in question. I, being a strong proponent of democracy, believe that it is the right of the people of Pakistan to participate in the election process and to reject or elect candidates of their choice.”

The former PM also said that the people enjoy an inalienable right to elect their representatives through a true democratic process and they should not be given the list of selective people through the process of elimination.

During proceedings of petitions against the Election Act, 2017, the Supreme Court held that morality or mala fide is not the ground to strike down a piece of legislation, and asked the lawyers whether it could be cast away if found inconsistence with the fundamental rights of the people.

Earlier, Pakistan People’s Party counsel Sardar Latif Khosa contended that the way the law was passed was dubious, adding that the incumbent government weakened the parliament instead of strengthening it.

Chief Justice Mian Saqib Nisar said, “We have to go straight into the law and as long as it is following the affairs of the state, the law will go well.”

He questioned whether the apex court could look into the process of legislation or the voting for the Act.

Farogh Naseem, representing Awami Muslim League chief Sheikh Rashid, contended before the court that the part of new election law which allowed respondent No 4 (Nawaz Sharif) to assume headship of his party was illegal as Nawaz was disqualified by the apex court for not being honest and truthful. He said the top court has also dismissed ex-PM’s review petition in the Panama judgment.

The chief justice asked Sheikh Rashid’s counsel to delete the National Assembly and the Senate from the list of respondents as there was no need for it when the federation was being represented. The CJP, however, said that they would ask the Attorney General for Pakistan to present the record of the debate that took place in the parliament for passing the Election Act, if needed.

Justice Ijaz and Justice Umar Atta Bandial asked Farogh Naseem to explain how the Section 203 of the Election Act, 2017 was violating the Constitution. Justice Ijaz further asked if the sub-section of that law could override the articles of the Constitution.

Farogh argued that Election Act was gazetted on October 2, 2017, 17 days after Nawaz Sharif was disqualified by the august court. He said the intra-party elections in the PML-N were held on October 3, and certain changes were made in the PML-N’s constitution as well the same day.

The lawyer contended that in a democratic system head of a political party is singularly the most important player. He decides about the three eventualities given in Article 63A – vote in the election of Prime Minister or Chief Minister, money bill, and the constitutional amendment bill, he added. He said the apex court’s judgment held that “what can’t be done directly can’t be done indirectly.”

Farogh argued that Nawaz Sharif, who was disqualified for being the member of parliament by the apex court, was now controlling party lawmakers after the enactment of this Act. He has unguided, unrestricted and omnipotent power, he added.

Justice Ahsan observed that how a person who himself is not truthful and honest could control the honest and truthful persons. Nawaz, he remarked, can’t be a king but is a kingmaker.

The Act has made a mockery of the court judgment, Farogh said. He referred the judgment of Justice Ijazul Ahsan and praised it.

Upon that the chief justice remarked: “I am surprised that wonderful observation was made as PML-N lawmaker Talal Chaudhry says ‘idols are sitting in the Supreme Court’.

The chief justice questioned how this law would be a farce and against the basic features of the democracy, adding the key feature of the constitution is democracy, and enforcement of fundamental rights and rule of law is also democracy.

The CJP further questioned can they strike down a constitutional provision only on the basis of the features of fundamental rights. He further asked what features could be the basis for striking down the statutory provisions.

Farogh said the law could be struck down if it is violating the fundamental rights. The Act is not just violative of Articles 62 and 63 but also the Articles 9, 14, 17, he contended.

Justice Ijaz said: “Throughout the Panama case we have asked him [Nawaz Sharif] to provide evidence about his assets but he did not give it.”

The chief justice questioned under what authority they [apex court] could read into Section 203 of Election Act. “How can we direct the parliament,” he inquired. In the 18th Amendment case they had requested the parliament to consider so and so provisions, he added.

The case was adjourned until today.



Nawaz opts not to become party to case