News Analysis |
Pakistan’s ex-prime minister, Nawaz Sharif, disqualified by Supreme Court on July 28, has finally filed three separate review petitions with the Supreme Court against the 5-member bench verdict of July 28th which disqualified him from holding public office – ostensibly for life. Khawaja Harris, Nawaz Sharif’s counsel, submitted these applications which also argue, in prayers, that the current NAB investigations being conducted in accordance with the Supreme Court’s verdict should be stayed while the court hears the review petition.
The petitions submitted by Nawaz on Tuesday may find a more sympathetic SC now that the pressure of the public and opposition parties has been diffused, a few pundits have predicted
This latest move appears to be the next step in the PML-N leader’s larger political strategy. These review applications – that have been portrayed as “Appeal” in most of Pakistani media – contest the July 28th verdict of Supreme Court principally on the grounds that the definition of “assets”, “salary” and “receivable” stated in the judgment was not appropriate.
Nawaz Sharif’s lawyer points out in the review petition that the omission to mention the unclaimed salary by Nawaz Sharif in his nomination papers could not, in any case, lead to a declaration on dishonesty in terms of Section 99 (f) of ROPA and Article 62 (1) (f) of the Constitution without first determining whether such omission was deliberate and with an ulterior motive, or merely inadvertent, accidental or due to a misconception or misunderstanding of law or fact. This is somewhat strange of an argument, coming from a leading lawyer like Khawaja Harris, since even first year law students are told that the “ignorance of law is not an excuse”
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The review petition further states that provisions of Article 62(1)(f) could not be invoked against Sharif without holding a regular trial and providing him with a full opportunity to provide evidence in support of the facts stated in the written submissions and to rebut any evidence to the contrary.
The Supreme Court decision of July 28, had explained that court being an appeals court and not a trial court will forward all points of facts, related to serious corruption and abuse of politics office, probed and reported by Supreme Court’s Joint Investigation team (JIT), to National Accountability Bureau (NAB) for filing references into a trial court; it had therefore given its verdict merely on the salary Nawaz received from FZE Capital as its chairman, and which Nawaz Sharif had never declared in its election nomination forms. This fact was then not contested and was admitted by the Sharif lawyers and that according to the court constituted a “receivable asset”
A minority of legal experts and pundits have expressed reservations regarding the grounds of the disqualification
However, legal experts – like Dr. Farogh Naseem and Saad Rasool- have highlighted that the request for a review of the decision is not the same as appealing it. Court decisions under Article 184(3) can only merit a “Review” and a usual style “Appeal” is not possible. A review can only entertain what is often described as “an error floating on the surface of the decision” while an appeal challenges the facts and grounds of the verdict. In case of “Review” lawyers cannot challenge the reasoning and logic of the court; they have to find out an obvious error. Sharif lawyers will therefore try to portray their arguments as pointing ‘obvious flaws floating on the surface of the decision”. However most English media in Pakistan is reporting the Review petitions as “Appeals” so there is a bit of confusion as to the nature of these applications.
Analysts are viewing these petitions as part of Nawaz Sharif’s greater political strategy. The GT Road rally, during which Nawaz repeatedly and vehemently attacked judges and the court, is now seen as “softening strategy” through which public pressure has been created upon the court for a relief. The apparent focus of this strategy – GT Road rally and petitions – is to cultivate the perception that Nawaz Sharif has been disqualified on inconsequential and minor technical grounds and that there is no evidence of corruption, or abuse of public office, on his part. PML-N members have repeatedly alluded to a larger conspiracy by “the establishment” and sometimes by unnamed “international forces” to derail the democratic process and CPEC progress with China. (meaning the United States)
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In order to sustain their current rhetoric, it is of paramount importance for Nawaz and his supporters to somehow delay the NAB proceedings ordered by the Supreme Court
Although none of the PMLN leaders has directly pointed to the military, the insinuations in their statements leave little doubt as to whom the PML-N stalwarts are referring to. In order to sustain their current rhetoric.
Review petitions make it obvious that, for Nawaz’s politics to continue, it is of paramount importance for Nawaz to stop the NAB and trial process. Because once the process, that deals essentially with corruption cases, gets into the trial court, TV media, newspapers and social media platforms (like Facebook and twitter) will report on facts on a daily basis and it will be difficult for Nawaz and his supporters to argue that “I have not done any corruption”.
While the disqualification of Nawaz Sharif was welcomed and celebrated by the opposition parties (PTI, JI, PPP and others) and their supporters, almost all legal experts and pundits affiliated with PMLN and Sharif family had protested that court has convicted Sharif on a mere technicality. But there was a third point of view expressed, rather cautiously, by several members of the legal community that viewed the court decision of July 28, with deep suspicion calling it a weak and compromised decision – that was designed to help Sharif’s politics and later review.
They point out that despite the mounds of incriminating evidence produced by the JIT, (Fake Trust Deed of 2006, Maryam still the beneficial owner in 2012, fabricated documents using Calibri font in 2006 dates, Attested copies submitted for 1980 Sale Agreement of Gulf Steel Mills but original did not exist in UAE records) the court chose to disqualify Nawaz on the basis of a rather minor technicality of “receivable assets” which gave PML-N the room to maneuver politically after the decision -and provided a plausible legal defense. This despite the fact that two Honorable judges – Justice Khosa and Justice Gulzar – had concluded that Sharifs were lying even before the additional report submitted by JIT. The Court also forwarded all points of facts to a trial court in a country where rich and powerful have never been convicted by a trial court. These lawyers, therefore, suspect deep politics in the July 28, decision.
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A review is specific to surface errors in the judgement while an appeal challenges the grounds of the verdict
These lawyers speculate that the Supreme Court judges tried to placate both PML-N and its opposition through this seemingly weak decision. The petitions submitted by Nawaz on Tuesday may find a more sympathetic SC now that the pressure of the public and opposition parties has been diffused, and Nawaz is being seen as a victim – a few pundits have predicted.
Prominent TV Anchor Dr. Moeed Pirzada summed up these different legal arguments, in his video blog a few days ago while Nawaz was busy building his case against Supreme Court. Here is a link to that video blog – which now, after filing of the “Review Petitions” certainly makes an interesting watch.
Political analysts point out that Sharif family has never been defeated in courts; if any thing they have derived their political power, over the past four decades, through the manipulation of Pakistani courts. All cases of corruption, embezzlement and abuse of political office brought against them by successive governments or other plaintiffs (like Model Town killings) ultimately floundered or petered out in courts and most of their political challenges were often resolved by obtaining relief through trial courts, high courts and supreme court. In 1993, Nawaz was restored as Prime Minister by supreme court after his disqualification by the then president, Ghulam Ishaq Khan. And in 2009, Supreme Court, under Iftikhar Chaudhry, granted Nawaz right of appeal against Sindh High Court decison in “Plane Conspiracy Case” after more than eight years. Nawaz, in December 2000, had struck a deal with Gen. Musharraf that stopped all court cases against him. He had thus never appealed against Sindh High Court decision.
It thus remains to be seen how the SC deals with Nawaz’s petitions. Will they grant the Sharif family a stay order while the court hears the review petition? Will a larger bench be constituted by Chief Justice? Despite the praise showered on the 5 justices who passed the 5-0 decision, of disqualification, real accountability and investigation of the Sharif dynasty, on the basis of facts and evidences gathered by the JIT’s has yet to take place. A stay order, against those proceedings, will change all political dynamics, since Nawaz will be suddenly seen strong and ascending – and he will be able to say again: “I did no corruption”