In the wake of disqualification of three-times elected Prime Minister, Mian Muhammad Nawaz Sharif, directly by Supreme Court of Pakistan, a heated debate is going on as to whether the highest court of the country has jurisdiction to act as a trial court while exercising jurisdiction under Article 184(3) of the Constitution of Islamic Republic of Pakistan [hereinafter “the Constitution”]. The main legal argument against the decision -though many are contesting it on facts and review petitions have also been filed by respondents on multiple grounds-is that it is violative of Article 10A [right to fair trial]. Article 10A, inserted through the Eighteenth Constitutional Amendment, guarantees a fundamental right that “for the determination of his civil rights and obligations or in any criminal charge against him a person shall be entitled to a fair trial and due process”.
In this paper, we are not discussing the political consequences of the judgment, but confining the discussion on purely legal issues, especially the scope of jurisdiction of the Supreme Court under the Constitution. In Imran Khan v Mian Nawaz Sharif & others [Constitutional Petition No 29 of 2016], the apex court has extensively dealt with this issue. It should also be remembered that in this case before the commencement of hearings, both petitioners and respondents, on the order of the court, gave their consent in writing that they had no objection on inquisitorial jurisdiction, exercisable by Supreme Court, under Article 184(3) of the Constitution. The objections on the jurisdiction of the court by the respondents in the event of the adverse order are thus not understandable as they participated fully in the proceedings and presented thousands of documents in their support and/or for the purpose of refuting the charges levelled against them.
The establishment, jurisdiction and powers of Supreme Court, conferred by the supreme law of the land, are briefly summarized on its website as below:
In the Panama Case, one very important question raised was: “What is the scope of the proceedings before Supreme Court under Article 184(3) of the Constitution and whether disputed or intricate questions of fact can be decided in such proceedings with or without recording of evidence”?
The answers to the above question, given in the order by all the five members of the bench in their separate notes, address all the objections of the respondents. However, in a section of media, political rallies and gatherings, an impression is being continuously given that the apex court exceeded its jurisdiction. This claim of Nawaz Sharif, his supporters and some members of the legal fraternity is legally and factually wrong.
The following points, facts, arguments, counter arguments and conclusions mentioned in the judgement of April 20, 2017 itself testify that objections raised vis-à-vis scope and import of Article 10A, Article 184(3) and Article 187(1) were discussed and adjudicated and the order is strictly in accordance with law, and there is no violation of the Constitution as alleged by the respondents, and their supporters:
1. On the issue of the scope of jurisdiction under Article 184(3) of the Constitution, the petitioners placed reliance on the cases of Watan Party and another v. Federation of Pakistan and others (PLD 2011 SC 997), Workers’ Party Pakistan through Akhtar Hussain, Advocate, General Secretary and 6 others v. Federation of Pakistan and 2 others (PLD 2012 SC 681), Muhammad Azhar Siddiqui and others v. Federation of Pakistan and others (PLD 2012 SC 774), Muhammad Yasin v. Federation of Pakistan through Secretary, Establishment Division, Islamabad and others (PLD 2012 SC 132), Watan Party and others v. Federation of Pakistan and others (PLD 2012 SC 292) and Pakistan Muslim League (N) through Khawaja Muhammad Asif, M.N.A. and others v. Federation of Pakistan through Secretary Ministry of Interior and others (PLD 2007 SC 642).
2. It was also argued by the petitioners that in an appropriate case, the Supreme Court could record evidence so as to ascertain a fact as held in the case of Air Marshal Muhammad Asghar Khan (retd) v. General Mirza Aslam Beg (retd), former Chief of Army Staff and others (PLD 2013 SC 1).
3. A valid point raised by Makhdoom Ali Khan, the counsel of Mian Muhammad Nawaz Sharif, was that the bar for disqualification under Article 62(1)(f) of the Constitution was higher than the bar for disqualification under section 99(1)(f) of the Representation of the People Act, 1976 [ROPA] because for the constitutional disqualification a prior declaration by a court of law is required whereas the said requirement is not there for the statutory disqualification. The Court resorted to both provisions for disqualifying Nawaz Sharif in its final order of July 28, 2017. The reasons given for the same can be debated and disagreements within the framework of law should be welcomed. However, derogatory remarks and scandalizing the apex court for political ends should be avoided.
(To be continued)
(The writers, lawyers and partners in Huzaima, Ikram & Ijaz, are Adjunct Faculty at Lahore University of Management Sciences)
====================================================================================== Article (1) There shall be a Establishment and ====================================================================================== 175 Supreme Court of Pakistan, a High Jurisdiction of Court for each Province and such other Courts Courts as may be established by law. (2) No Court shall have any jurisdiction save as is or may be conferred on it by the Constitution or by or under any law. (3) The Judiciary shall be separated progressively from the Executive within fourteen years from the commencing day. Article The Supreme Court shall consist of Constitution of 176 a Chief Justice to be known as the Supreme Court Chief Justice of Pakistan and so many other Judges as may be determined by Act of Majlis-I-Shoora (Parliament) or, until so determined, as may be fixed by the President. Article (1) The Chief Justice of Pakistan shall Appointment of 177 be appointed by the President, and Supreme Court each of the other Judges shall be Judges appointed by the President after consultation with the Chief Justice. (2) A person shall not be appointed a Judge of the Supreme Court unless he is a citizen of Pakistan; and- (a) has for a period of, or for periods aggregating, not less than five years been a judge of a High Court (including High Court which existed in Pakistan at any time before the commencing day); or (b) has for a period of, or for periods aggregating, not less than fifteen years been an Advocate of a High Court (including a High Court which existed in Pakistan at any time before the commencing day). Article Before entering upon office, the Chief Oath of Office 178 Justice of Pakistan shall make before the President, and any other Judge of the Supreme Court shall make before the Chief Justice, oath in the form set out in the Third Schedule. Article A Judge of the Supreme Court shall Retiring Age 179 hold office until he attains the age of sixty-five years, unless he sooner resigns or is removed from office in accordance with the Constitution. Article At any time when- Acting Chief 180 (a) the Office of Chief Justice of Justice Pakistan is vacant; or (b) the Chief Justice of Pakistan is absent or is unable to perform the functions of his office due to any other cause, (c) the President shall appoint [the most senior of the other Judges of the Supreme Court] to act as Chief Justice of Pakistan. Article 181 (1) At any time when- Acting Judges (a) the office of a Judge of the Supreme Court is vacant; or (b) a Judge of the Supreme Court is absent or is unable to perform the functions of his office due to any other cause, the President may, in the manner provided in clause (1) of Article 177, appoint a Judge of a High Court who is qualified for appointment as a Judge of the Supreme Court to act temporarily as a Judge of the Supreme Court. [Explanation._ In this clause 'Judge of a High Court' includes a person who has retired as a Judge of a High Court]. (2) An appointment under this Article shall continue in force until it is revoked by the President. Article If at any time it is not possible for want Appointment of 182 of quorum of Judges of the Supreme Court Ad-hoc Judges to hold or continue any sitting of the Court, or for any other reason it is necessary to increase temporarily the number of Judges of the Supreme Court, the Chief Justice of Pakistan may, in writing,- (a) With the approval of the President, request any person who has held the office of a Judge of that Court and since whose ceasing to hold that office three years have not elapsed; or (b) with the approval of the President and with the consent of the Chief Justice of a High Court, require a Judge of that Court qualified for appointment as a Judge of the Supreme Court, to attend sittings of the Supreme Court as an ad hoc Judge for such period as may be necessary and while so attending an ad hoc Judge shall have the same power and jurisdiction as a Judge of the Supreme Court. Article (1) The permanent seat of the Supreme Seat of the Supreme 183 Court shall, subject to clause (3), Court be at Islamabad. (2) The Supreme Court may from time to time sit in such other places as the Chief Justice of Pakistan, with the approval of the President, may appoint. (3) Until provision is made for establishing the Supreme Court at Islamabad, the seat of the Court shall be at such place as the President may appoint. Article (1) The Supreme Court shall, to the Original 184 exclusion of every other Court, have Jurisdiction of original jurisdiction in any dispute Supreme Court between any two or more Governments. Explanation. _ In this clause, Governments means the Federal Government and the Provincial Governments. (2) In the exercise of the jurisdiction conferred on it by clause (1), the Supreme Court shall pronounce declaratory judgments only. (3) Without prejudice to the provisions of Articles 199, the Supreme Court shall, if it considers that a question of public importance with reference to the enforcement of any of the Fundamental Rights conferred by Chapter I of Part II is involved, have the power to make an order of the nature mentioned in the said Article. Article (1) Subject to this Article, the Supreme Appellate 185 Court shall have jurisdiction to Jurisdiction of hear and determine appeals from Supreme Court judgments, decrees, final orders or sentences of a High Court. (2) An appeal shall lie to the Supreme Court from any judgment, decree, final order or sentence of a High Court- (a) if the High Court has on appeal reversed an order of acquittal of an accused person and sentenced him to death or to transportation for life or imprisonment for life; or, on revision, has enhanced a sentence to a sentence as aforesaid; (b) if the High Court has withdrawn for trial before itself any case from any Court subordinate to it and has in such trial convicted the accused person and sentenced him as aforesaid; or (c) if the High Court has imposed any punishment on any person for contempt of the High Court; or (d) if the amount or value of the subject-matter of the dispute in the Court of first instance was, and also in dispute in appeal is, not less than fifty thousand rupees or such other sum as may be specified in that behalf by Act of [Majlis-I-Shoora (Parliament)] and the judgment, decree or final order appealed from has varied or set aside the judgment, decree or final order of the Court immediately below; or (e) if the judgment, decree or final order involves directly or indirectly some claim or question respecting property of the like amount or value and the judgment, decree or final order appealed from has varied or set aside the judgment, decree or final order of the Court immediately below; or (f) if the High Court certifies that the case involves a substantial question of law as to the interpretation of the Constitution. (3) An appeal to the Supreme Court from a judgment, decree, order or sentence of a High Court in a case to which clause (2) does not apply shall lie only if the Supreme Court grants leave to appeal. Article (1) If, at any time, the President Advisory 186 considers that it is desirable Jurisdiction to obtain the opinion of the Supreme Court on any question of law which he considers of public importance, he may refer the question to the Supreme Court for consideration. (2) The Supreme Court shall consider a question so referred and report its opinion on the question to the President. Article The Supreme Court may, if it Power of Supreme 186A considers it expedient to do so Court to transfer in the interest of justice, transfer any cases case, appeal or other proceedings pending before any High Court to any other High Court. (1) Subject to clause (2) of Article 175, the Supreme Article Court shall have power to issue Issue and Execution 187 such directions, orders or decrees of Processes of as may be necessary for doing Supreme Court complete justice in any case or matter pending before it, including an order for the purpose of securing the attendance of any person or the discovery or production of any document. (2) Any such direction, order or decree shall be enforceable throughout Pakistan and shall, where it is to be executed in a Province, or a territory or an area not forming part of a Province but within the jurisdiction of the High Court of the Province, be executed as if it had been issued by the High Court of that Province. (3) If a question arises as to which High Court shall give effect to a direction, order or decree of the Supreme Court, the decision of the Supreme Court on the question shall be final. Article The Supreme Court shall have power, Review of 188 subject to the provisions of Judgments or any Act of [Majlis-I-Shoora Orders by the (Parliament)] and of any rules made by Supreme Court the Supreme Court, to review any judgment pronounced or any order made by it. Article Any decision of the Supreme Decisions of 189 Court shall, to the extent that Supreme Court it decides a question of law or binding on other is based upon or enunciates a principle Courts of law, be binding on all other Courts in Pakistan. Article All executive and judicial authorities Action in aid of 190 throughout Pakistan shall act Supreme Court in aid of the Supreme Court. Article Subject to the Constitution and law, Rules of Procedure 191 the Supreme Court may make rules regulating the practice and procedure of the Court. ======================================================================================