Not entirely unexpectedly, the five-member larger bench of the Supreme Court (SC) has dismissed the review petitions moved by the Sharifs against the July 28, 2017 judgement that disqualified Nawaz Sharif as prime minister. Justice Asif Saeed Khosa, who headed the larger bench, announced the short order dismissing the review petitions “for reasons to be recorded later”. That brings to an end the more than a year and a half affair that began in April 2016 when the International Consortium of Investigative Journalists exposed the Sharifs’ offshore assets as part of the Panama Papers. In its July 28, 2017 verdict, the SC had relied on Articles 62 and 63 of the Constitution, which respectively lay down the grounds for disqualification of elected representatives and the qualifications for them to be elected. Since the SC in that verdict had relied on Article 62(1)(f) to disqualify Nawaz Sharif for failing to declare his undrawn salary from his son’s company in Dubai, the issue of the tenure of his disqualification remains unresolved. Article 62(1)(f) does not specify the tenure of disqualification. If precedent be something to go by, former prime minister Yousaf Raza Gilani was disqualified by the SC under Article 63(h) for contempt of court and sentenced till the rising of the court. This article specifies the tenure of disqualification as five years. A separate five-member bench of the SC is to determine the disqualification period of Nawaz Sharif. While retaining the right to disagree with the July 28, 2017 judgement, and even subjecting it to reasoned criticism, the Sharifs should now refrain from throwing barbs at the higher judiciary and instead prepare to fight their legal battles in the trial courts poised to take up the National Accountability Bureau’s (NAB’s) references against Nawaz Sharif, his children, and Ishaq Dar. Even though the review petitions’ dismissal came on the eve of the by-election in Lahore’s NA-120, Nawaz Sharif’s vacated seat, it would be a mistake to rely on street power or agitation as a defence against Nawaz Sharif’s disqualification or the references now dangling over the Sharifs’ heads. The counsel for the Sharifs did express concern before the larger bench regarding a fair trial for their clients in the presence of a judge of the SC overseeing the trial procedures. However, the larger bench attempted to reassure the petitioners that no observation of the SC will influence the trial court and no prejudice will be allowed. The larger bench also explicated the position that the SC had only addressed the constitutionality of the matter, while the criminal side would be dealt with by an accountability court.
The SC’s July 28, 2017 verdict and now the dismissal of the review petitions have left the legal community divided in their interpretation of the jurisprudential implications of the judgements. These views, especially critical ones, have found an echo in parliament. On the International Day of Democracy on September 15, 2017, Senate Chairman Raza Rabbani and PPP Senator Farhatullah Babar made trenchant comments on the current emerging situation. The Senate Chairman reiterated the constitutional position that all state institutions must respect the trichotomy of power amongst parliament, the executive and the judiciary. Raza Rabbani argued that any state institution that misused its power was undermining democracy. There is a need, he emphasized, to learn from our mistakes and strengthen parliament if the democratic project is to succeed. Senator Farhatullah Babar referred in cryptic manner to the totally new form of threat to democracy. He likened it to a model of backseat driving without responsibility or accountability. The person at the wheel, he added, was outmanoeuvred by the real controllers of vital levers on the rear seat. Such a construct, he went on, was fated to meet a disastrous accident. So the argument rages on and is unlikely to go away soon. The Sharifs nevertheless must fight the fight of their lives through legal, not street power, means, in a mature adherence to the strategic patience they need to embrace.