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SC: Jurisdiction & justice – II

4. Makhdoom Ali Khan referred to the case of Dr Sher Afgan Khan Niazi v. Imran Khan (Reference No. 1 of 2007) wherein Imran Ahmad Khan Niazi, one of the present petitioners, had successfully maintained before the Election Commission of Pakistan that post-election disputes fell only under Article 63 and not under Article 62 of the Constitution. It was, however, conceded by him that a decision of the Election Commission of Pakistan is not binding upon Supreme Court.

5. Salman Akram Raja, representing the children of Nawaz Sharif, argued that in exercise of jurisdiction under Article 184(3) of the Constitution, the Supreme Court ordinarily did not record evidence as no right of cross-examination of witnesses was available, besides the absence of any right of appeal and, therefore, in an appropriate case it may be argued that “rendering a finding of fact in exercise of such jurisdiction may militate against the Fundamental Right guaranteed by Article 10A of the Constitution regarding fair trial and due process”.

6. Ashtar Ausaf Ali, the Attorney-General for Pakistan, pointed out that the jurisdiction invoked was that under Article 184(3) of the Constitution and the main prayer made was in the nature of a writ of quo warranto. He argued that it was not the practice of Supreme Court to entertain and proceed with such a case involving election to the Parliament under its original jurisdiction in the first instance and such issues were generally entertained by this court in its appellate jurisdiction. He maintained that “a declaration made by Supreme Court was to be binding on all the other courts and tribunals in the country and, therefore, determination of a fact by this Court in exercise of its original jurisdiction should sparingly be resorted to “because Supreme Court may not be in the best position to record evidence, there is no appeal provided against a decision rendered in the said jurisdiction and the Fundamental Right under Article 10A of the Constitution may be jeopardized in such a process”. He also referred to the case of Rana Aftab Ahmad Khan v. Muhammad Ajmal (PLD 2010 SC 1066) to urge that “intricate questions of fact requiring recording of evidence may not be resolved by this Court in its jurisdiction under Article 184(3) of the Constitution”.

7. Justice Asif Saeed Khan Khosa, heading the five-member bench in the Panama case, in Para 66 of his order noted as under:

The questions most hotly debated by the learned counsel for the parties during the hearing of these petitions have been as to what is the scope of the proceedings before this Court under Article 184(3) of the Constitution and as to whether disputed or intricate questions of fact can be decided in such proceedings with or without recording of evidence or not. It was decided by this Court on November 03, 2016 with reference to some precedent cases that these petitions involved some serious questions of public importance with reference to enforcement of some Fundamental Rights conferred by Chapter 1 of Part II of the Constitution and, therefore, the same were maintainable before this Court under Article 184(3) of the Constitution. On that occasion, none of the parties to these petitions raised any objection to competence and maintainability of these petitions and even during the hearing of these petitions no such objection has been raised at any stage of the protracted hearings. In his two concise statements submitted by respondent No. 1 maintainability of these petitions under Article 184(3) of the Constitution had not been contested and even the immunity available to a Prime Minister in some matters under Article 248 of the Constitution was not claimed.

8. Nobody in media is referring to the order of the Supreme Court of November 3, 2016, which was never contested by Nawaz and his children and Ishaq Dar. It attained finality and later on raising objection on jurisdiction was and is nothing but an afterthought.

9. It was agreed by all the parties that the matter was of immense public importance and involved enforcement of some fundamental rights guaranteed by the Constitution. In view of this, the respondents before the Supreme Court agreed that the petitions filed under Article 184(3) of the Constitution were competent and maintainable under Article 184(3) of the Constitution.

10. It was also not disputed that the remedy of filing an election petition before an Election Tribunal under Article 225 of the Constitution was not available at this juncture. The Speaker of the National Assembly could have referred the matter to the Election Commission of Pakistan under Article 63(2) of the Constitution but he dismissed various petitions filed before him against the members of the ruling party, and selectively forwarded those filed against members of Opposition. Had he filed all or rejected all, taking up of cases by Supreme Court under Article 184(3) could have been averted and the parties could have approached Election Commission or Islamabad High Court, as the case may be.

11. The above was the background under which the Supreme Court entertained the petitions under Article 184(3) of the Constitution.

12. As regards the argument that the Supreme Court could not disqualify the three-time elected Prime Minister as court of first instance is addressed by Justice Asif Saeed Khan Khosa as under:

“It is said that how highsoever you may be the law is above you. It is in such spirit of democracy, accountability and rule of law that this Court would not give a Prime Minister/Chief Executive of the Federation a field day merely because no other remedy is available or practicable to inquire into the allegations of corruption, etc. leveled against him or where such inquiry involves ascertainment of some facts. It is not for nothing that Article 187(1) of the Constitution has empowered this Court to do “complete justice” where all other avenues of seeking justice are either unavailable or blocked”.

In view of above, it can be seen that the issue of jurisdiction under Article 184(3) read with Article 187(1) is elaborately and authentically adjudicated by the Supreme Court and the consent of parties were obtained as mentioned in the order dated November 3, 2016.

The allegations by respondents that they were condemned unheard and the right under Article 10A was denied are also totally unfounded and against the facts. They submitted documents and availed full opportunity of being heard. In fact, they deliberately withheld evidence that attracts Article 129(g) of Qanoon-e-Shahadat Order, 1984. They even fabricated the documents as held in final judgment of July 28, 2017, for which trial is to be held by the competent court.

There was no violation of Article 10A as held in Para 77 of the order by Justice Asif Saeed Khan Khosa as under:

“It was also contended by the learned counsel for the private respondents that in exercise of this Court’s jurisdiction under Article 184(3) of the Constitution ordinarily no evidence is recorded, no right of cross-examination of witnesses is available and no right of appeal exists against the decision rendered and, therefore, it can be argued that rendering a finding of fact in exercise of such jurisdiction may militate against the Fundamental Right guaranteed by Article 10A of the Constitution regarding fair trial and due process. Article 10A of the Constitution provides as follows:

“10A. 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.”

There is hardly any “determination” of civil rights of the private respondents involved in the present proceedings and no “trial” of the said respondents on any “criminal charge” is being conducted in these proceedings and, therefore, the said contention has failed to impress us. The case in hand is akin to the cases of Mohtarma Benazir Bhutto and another v. President of Pakistan and others (PLD 1998 SC 388) clarified in Mohtarma Benazir Bhutto v. President of Pakistan and 2 others (PLD 2000 SC 77) and Air Marshal Muhammad Asghar Khan (retd) v. General Mirza Aslam Beg (retd), former Chief of Army Staff and others (PLD 2013 SC 1) wherein the constitutional aspects of the cases were decided by this Court under Article 184(3) of the Constitution whereas the criminal aspects of the matters were left to be attended to by the appropriate investigation agencies or criminal courts”.

It needs to be highlighted that jurisdiction under Article 184(3) of the Constitution is inquisitorial in nature rather than adversarial and while exercising such jurisdiction the Supreme Court can ascertain, collect and determine facts where needed or found necessary. In the case of Pakistan Muslim League (N) through Khawaja Muhammad Asif, MNA and others v. Federation of Pakistan through Secretary Ministry of Interior and others (PLD 2007 SC 642) it was observed that there was a “judicial consensus” on the scope of proceedings under Article 184(3) of the Constitution and that even disputed questions of fact could be looked into where a Fundamental Right had been breached provided there was no voluminous evidence to be assessed and no intricate disputed questions of fact were involved.

In the case of Lt-Col. Farzand Ali and others v. Province of West Pakistan through the Secretary, Department of Agriculture, Government of West Pakistan, Lahore (PLD 1970 SC 98), the Supreme Court clarified that where the question was of a right to continue in public office, it could interfere “through proceedings not exactly as quo warranto but in the nature of quo warranto with a wider scope”.

The Supreme Court also rejected the argument of Attorney General for Pakistan that a member of the National Assembly did not hold a “public office” and, therefore, a Constitution Petition in the nature of quo warranto was not maintainable against him either before a High Court under Article 199(1)(b)(ii) or before this Court under Article 184(3) of the Constitution. Justice Asif Saeed Khan Khosa held that “it failed to find favour with me as it has already been held by this Court in the case of Salahuddin and 2 others v. Frontier Sugar Mills and Distillery Ltd, Takht Bhai and 10 others (PLD 1975 SC 244) that the words “public office” are much wider than the words “service of Pakistan” and they include those who perform legislative function. A similar view was also taken by this Court in the case of Syed Mehmood Akhtar Naqvi v. Federation of Pakistan through Secretary Law and others (PLD 2012 SC 1089)”.

The objection that Supreme Court acted as trial court while exercising powers under Article 184(3) read with Article 187(1) is totally misconceived. 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) evidence was in fact recorded by the Supreme Court and it was a petition filed under Article 184(3) of the Constitution.

In the case of General Secretary, West Pakistan Salt Miners Labour Union (CBA) Khewra, Jhelum v The Director, Industries and Mineral Development, Punjab, Lahore (1994 SCMR 2061), it was clearly held by the Supreme Court that “an exercise of finding facts can be resorted to in proceedings under Article 184(3) of the Constitution”.

In the past, while proceeding under Article 184(3) of the Constitution, in many cases, the Supreme Court even constituted commissions with the task to inquire into some facts by recording evidence and to determine questions of fact on behalf of the Supreme Court-the leading cases were that of Ms. Shehla Zia and others v Wapda (PLD 1994 SC 693), Watan Party and others v Federation of Pakistan and others (PLD 2012 SC 292) and Suo Motu case No. 16 of 2016 (Quetta lawyers’ carnage case).

Justice Shaikh Azmat Saeed in Para 9 of his order made the following observations:

“Thus, to exercise authority on their behalf by their chosen representatives is the most foundational of all the Constitutional rights of the people of Pakistan, if a disqualified person, as alleged, usurps such role and thereafter becomes the Prime Minister surely such right of the people is affected and is liable to be enforced by this Court. The contentions of the learned Attorney General for Pakistan to the contrary cannot be accepted and it is reiterated that these Petitions under Article 184(3) of the Constitution are maintainable”.

In the light of above, it can be safely concluded that in the Panama Case, the Supreme Court did not deviate from its earlier practice of exercising extraordinary jurisdiction-vested in it under the Constitution of Pakistan-where issues of public importance affecting fundamental rights were involved.

Justice Sh. Azmat Saeed in Para 19 of his note held that “………..Even, if a delinquent person offers a perfect, legally acceptable explanation for the source of funds for acquiring the undeclared assets, he cannot escape the penalty of rejection of his Nomination Papers or annulment of his election. Such is the law of the land and as has been repeatedly and consistently interpreted by this Court, including in the judgments, reported as (1) Muhammad Jamil v. Munawar Khan and others (PLD 2006 SC 24), (2) Khaleefa Muhammad Munawar Butt and another v. Hafiz Muhammad Jamil Nasir and others (2008 SCMR 504) and (3) Muhammad Ahmad Chatta v. Iftikhar Ahmad Cheema and others (2016 SCMR 763)”.

Thus the argument that Nawaz Sharif could not have been disqualified for merely omitting some asset in nomination paper is not sustainable. Lying on oath was sufficient ground for disqualifying him.

The Supreme Court of Pakistan held in Muhammad Siddique Baloch v Jehangir Khan Tareen PLD 2016 Supreme Court 97 that a person who was untruthful or dishonest or profligate “has no place in discharging the noble task of law making and administering the affairs of State in government office”. Implementing, the command of law, the Supreme Court rightly invoked section 99(1)(f) of the ROPA as Nawaz Sharif deliberately concealed income from Capital FZE as well as concealed ‘asset’ (closing balance of account maintained in UAE). Section 99(1)(f) of the ROPA reads as under:

“99. Qualifications and disqualifications.- (1) A person shall not be qualified to be elected or chosen as a member of an Assembly unless- ———–

(f) he is sagacious, righteous and non-profligate and honest and ameen”.

From Tax Year 2008 onwards, Nawaz Sharif was resident (the term as defined in section 82 of the Income Tax Ordinance, 2001). He was thus liable to tax for both Pakistan and foreign source income. He was bound by law to offer for tax salary income from Capital FZE, on due or receipt basis, whichever matures earlier [section 12 read with section 69 of the Income Tax Ordinance, 2001]. He did not declare any such income in his tax returns and nomination papers filed on 31 March 2013. He also concealed the bank account maintained in UAE. Judgement of Supreme Court for disqualifying Nawaz Sharif is based on report of Joint Investigation Team (JIT) which was confronted to him and he also filed reply. Those claiming that no case is proved against Nawaz Sharif should read this part of JIT report which says:

“Further, evidence thus procured reveals that Mian Nawaz Sharif, Respondent No 1, was the chairman of the board for Capital FZE from August 7, 2006 until April 20, 2014 at a salary of AED 10,000. Further, evidence revealed that this salary was revised on February 02, 2007 vide Employment Contact Amendment-Form 9, duly signed by Respondent No 1, filed with JAFZA. On the basis of this employment Respondent No 1 was able to procure “Iqama” dated 5-7-2009 and valid up to 4-6-2015 to work and reside in Dubai (Annex G)”.

In its order of July 28, 2017, the Supreme Court noted that Nawaz Sharif “denied withdrawal of salary, but payment of salaries to all employees electronically, through the Wage Protection System, under Ministerial Resolution No. (788) for 2009 on Wage Protection used by United Arab Emirates Ministry of Labour and Rules 11(6) and 11(7) of the Jebel Ali Free Zone Rules, would belie his stance”. Rule 11(7) says:

A client shall be registered in WPS and shall transfer the Employees’ salaries through the WPS to confirm that all emoluments due have been paid between the 1st and 15th of every month. A Client failing to register in the WPS, as required by Jafza, may suffer penalties. A Client is required to keep certified copies of certificates of payments – duly signed by both the Employee and the authorised signatory of the Client approved by Jafza. A Client shall have available for inspection such certified copies of the certificate of payment.

Capital FZE did not produce evidence in Supreme Court that it was penalized for violating the above rule by not paying salary to Nawaz Sharif. If salary was paid but not withdrawn by Nawaz Sharif, it could not escape taxability under section 12 read with section 69 the Income Tax Ordinance, 2001 and closing balance was to be declared on asset side in wealth statement and in nomination papers. If salary was not paid by Capital FZE, it was violation of the law of the UAE.

It is also worth mentioning that the deadline for implementing WPS for firms with more than 100 workers was before November 30, 2009, companies with a workforce of 15 to 99 by February 28, 2010 and companies with less than 15 workers before May 31, 2010. The companies failing to meet the said deadlines were to be denied new work permits. It is evident from the record that Nawaz Sharif was issued second Iqama [7104231/201/06 expiring on June 4, 2015]-earlier one was issued on July 6, 2009 that expired on July 5, 2012. Had salary not been transferred to his account, Capital FZE could not get second Iqama for him.

Undoubtedly, Nawaz Sharif was guilty of concealing the fact of employment with Capital FZE, tax evasion and continuing the employment even after taking oath of Prime Minister on June 5, 2013. Those who say he is not removed on corruption charges must read section 78(3) of Representation of People Act, 1976 that defines filing of false declaration as “corrupt practice”. Indeed, the disqualification of Nawaz Sharif by Supreme Court for filing false declaration is strictly in accordance with the law of this land.

(Concluded)

(The writers, lawyers and partners in Huzaima, Ikram & Ijaz, are Adjunct Faculty at Lahore University of Management Sciences)

Huzaima Bukhari and Dr Ikramul Haq, "SC: Jurisdiction & justice – II," Business Recorder. 2017-08-27.
Keywords: Political science , Supreme court , Fundamental right , Panama case , National Assembly , Article , Constitution , Pakistan , FZE , JIT , PLD

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