ISLAMABAD - The Supreme Court said yesterday it had shown ‘extra care’ in Panama leaks case and ex-PM Nawaz Sharif’s disqualification was based on just “the tip of one iceberg”.
Hearing review pleas filed against July 28 judgment, a five-judge bench told the defence lawyer if he insists that Nawaz was disqualified over a trivial issue, the court “could put finger on other icebergs too”.
Representing the former prime minister, Khwaja Haris said Nawaz Sharif was ready to face trial anywhere but he wanted review of the ‘narrow’ interpretation of law which resulted in his disqualification.
The same five-member bench larger bench which is hearing the review pleas had heard Panama Papers case and disqualified Nawaz on July 28 for not declaring his ‘receivable’ salary while he served as chairman of the board of a UAE-based company of his son.
His counsel had conceded the Joint Investigation Team’s claim that Nawaz Sharif had been a designated chairman of Capital FZE but said he did not receive any salary. The court however ruled that salary falls in definition of ‘receivables’ and it was an asset even if it was not withdrawn.
In its July judgment, the court also ordered the National Accountability Bureau to send references against him and his family and Finance Minister Ishaq Dar on the basis of record collected by the JIT about their financial dealings.
The final verdict was signed and announced by all the five judges on the bench, though two of the them - Justice Asif Saeed Khan Khosa and Justice Gulzar Ahmed - did not hear the arguments on the Joint Investigation Team (JIT) report.
Khawaja Haris on Wednesday raised questions on the July 28 judgment. He argued that Justice Khosa and Justice Gulzar should not have signed and endorsed the final order as they had already passed their final decision in the case on April 20.
He further said though all the five judges passed independent judgment on April 20, they signed the order of the majority judgment, in which a request was made to the chief justice to constitute a special bench for implementation of the directions of the 3/2 majority judgment.
The counsel contended that the two judges disqualified ex-PM (on April 20) on the basis of discrepancies in his statements, while three judges - Justice Ejaz Afzal, Justice Sheikh Azmat and Justice Ijazul Ahsan – later disqualified Nawaz Sharif for non-withdrawal of ‘receivable’.
Justice Khosa asked the counsel, “Are you are telling the authors of the judgment that what they wrote they didn’t mean it?”
Justice Azmat asked him if he wanted to say that “the judges of the Supreme Court can’t act as the Supreme Court.”
Head of the larger bench Justice Asif Saeed Khosa, who had also headed the Panama case bench, said that that all the five judges had agreed on the July 28 judgment.
The content of the minority judgment of April 20 [where the verdict was 3-2] and majority judgment of July 28 may have been different, but they both reached the same conclusion –Nawaz Sharif stands disqualified, he said.
Justice Khosa also informed the counsel that the bench members had previously disagreed only over the formation of the JIT. “None of the three judges [who ruled for further investigation on April 20] had disagreed with the minority verdict [of disqualifying Nawaz Sharif]”, he emphasised.
Justice Khosa further said that the two judges who ruled in favour of disqualification on April 20 did not add anything in the July 28 verdict. He said that dissenting judges also sign final judgments, adding that examples of it exist in judicial history.
He then referred the judgment of Anwar Saifullah, Huboura Bustard, rent case and the Zahid Rehman. He said in these judgments the judges who wrote dissenting notes also signed the final order, adding, this is the practice.
The court observed even the dissenting or the minority judges sign the judgment of the majority and the final order, which is the order of the court.
When Justice Ijazul Ahsan pointed out that the petitioners had not challenged the April 20 verdict — implying that they had accepted it — the counsel responded that his clients had accepted only the majority judgement that ordered the formation of a JIT.
The counsel said the petitioners did not raise the issue of non-withdrawal of salary from the Capital FZE by Nawaz Sharif as it only surfaced in the JIT report.
At this, Justice Ejaz said that Justice Ijazul Ahsan in his April 20 judgment had mentioned about it.
Haris contended whether not withdrawing salary was such a serious matter that his client was disqualified.
The counsel also suggested that the disqualification, if necessary, should have come from the Election Commission of Pakistan instead of the court, as he said that a mechanism is provided for it in Representation of Peoples Act, 1976. If a parliamentarian does not disclose his asset and when it comes to the notice of ECP, it can proceed against him/her under Section 76(a) of ROPA.
Also, he said the JIT did not say that salary went into the bank account of Nawaz Sharif. Haris said there is no proof that Nawaz Sharif received salary.
Justice Ijaz said if the salary was not withdrawn, the Iqama was also not suspended.
Justice Ejaz pointed out that non-transfer of salary was also an illegality when he said the law (Al-Jebel Ali Free Zone Rules) says salary would automatically go into the account. He said Nawaz Sharif was the Chairman of Capital FZE and according to the written agreement, so, he was entitled to 10,000 Dirham salary per month.
Kh Haris asked if non-withdrawal of salary gave any benefit to ex-PM or anyone in Pakistan was affected by it. He said 10,000 Dirham had not much value for a person who owns assets worth billions of rupees.
“Are you saying a poor man should go to jail if he steals 10,000 dirhams, but when a billionaire does it, he should get off scot-free?” asked Justice Ijaz. “Should there be different laws for the two types of people?” he further asked.
This was not a case of theft, the counsel argued. He contended there was no bad intention or deliberate attempt behind non-disclosure of salary by his client.
Justice Azmat asked him if he wanted to say that the allegations are not enough if there is no mens rea (bad intention).
Hair said it was unfair to disqualify someone for life under Article 62(f) for not disclosing a salary. He said that the court could have declared Nawaz Sharif’s election to the National Assembly void instead of disqualifying him for life.
Justice Ejaz asked if they have declared disqualification under 62(1)(f) was forever. He said in Iftikhar Cheema’s case disqualification was under 62(1)(f). Justice Azmat stated that in many judgments it was held that the disqualification under 62(1)(f) is lifelong. However, Justice Ejaz said: “We will see this matter [latter].”
The counsel said the disqualification in Article 184(3) proceeding has deprived the PM of his right under Articles 4 and 25 of Constitution, adding disqualification should have been made by the right forum (ECP).
On the issue of court’s declaring salary an asset, the counsel said there were numerous dictionaries and various definitions of salary then why the court relied on one particular definition in a dictionary to disqualify Nawaz Sharif.
Upon that Justice Ijaz said: “We have shown extra care in this case and it was just the tip of one iceberg, but if you want that we put finger on other icebergs too then you must not complain later on.”
The case was adjourned until Thursday.