ISLAMABAD: The counsel representing Prime Minister Nawaz Sharif in the Panama Papers leaks case argued before the Supreme Court on Friday that parliamentarians cannot be unseated on the basis of statements in parliament and without considering the context of the statements made.

Senior counsel Makhdoom Ali Khan, who is defending the prime minister, also cited a 2015 Supreme Court case in which Pakistan Tehreek-i-Insaf leader Ishaq Khakwani had sought disqualification of Prime Minister Nawaz Sharif for his alleged misstatement of facts in the National Assembly on Aug 29, 2014.

Against the backdrop of the PTI-led 126-day sit-in in 2014, the prime minister had stated that his administration would never ask the armed forces to mediate and become a guarantor between the government and the protesting parties — PTI and the Pakistan Awami Tehreek — to end their dharna on the Constitution Avenue.

In that judgement, the counsel argued, Justice Asif Saeed Khosa, who now heads the five-judge Supreme Court bench hearing the Panama leaks case, had observed that Article 62(1-f), which spells out qualifications and disqualifications of parliamentarians, was a nightmare and a feat of obscurity.

The counsel wondered how the Supreme Court can disqualify the prime minister without determining the standard of proof and procedures to be adopted for disqualification on a provision which a bench of the apex court had described as a nightmare.

‘18th Amendment raised the threshold for disqualification of parliamentarians’

Makhdoom Ali Khan read out an additional note in the Ishaq Khakwani case in which Justice Khosa had observed that vague, uncertain, obscure and conflicting terminology of Articles 62 and 63 of the Constitution was bound to confuse voters, hound the candidates and embarrass the returning officers at the time of scrutiny of nomination papers.

He then cited a statement made by S. M. Zafar, the jurist, who had dubbed at least 18 articles of the Constitution as a “nightmare for the nation” but a “harvest” for lawyers.

At this Justice Khosa turned his gaze towards the large number of lawyers engaged in the case, and sitting inside the considerably small Courtroom No 2, quipping: “Harvests well reaped.”

Makhdoom Ali Khan argued that the 18th Amendment had raised the threshold, or the standards, for disqualification of parliamentarians by inserting a condition that unless there is a declaration by a court of law, an elected member will not lose his seat for not being sagacious, righteous, non-profligate, honest and Ameen.

The Ishaq Khakwani case too came in appeal against the Lahore High Court judgement in which Justice Ijaz-ul-Ahsan, now a member of the Supreme Court bench hearing the Panama Papers case, dismissed the petition on the grounds that the petitioner had raised a political question.

Although it did not agree with the tag “political question”, the Supreme Court upheld the dismissal of the petition.

Citing a number of provisions from the Representation of People Act 1976, the counsel contended that these provisions needed to be read in conformity with Article 62(1-f) of the Constitution, which makes it clear that an inquiry like this cannot be conducted by invoking extraordinary jurisdiction by the apex court under Article 184(3).

At this Justice Ahsan observed the counsel wanted to assert that a court of law should make a proper determination before disqualifying a member.

Referring to earlier disqualifications by the Supreme Court on account of dual nationality, the counsel highlighted that such decisions were made because Article 63 (1 c) of the constitution clearly stated that a member will stand disqualified and cease to be a citizen of Pakistan if he acquired the citizenship of a foreign state. Moreover, former chief justice Tassaduq Hussain Jillani had also held as a high court judge that an individual who holds dual nationality cannot become a member of the parliament.

FAKE DEGREE: On unseating of members by the Supreme Court for possessing fake degrees, the counsel referred to a number of judgements of the apex court to highlight that in all such cases, either the returning officers or the election tribunals had given their ruling.

The counsel also referred to the Siddiq Khan Baloch versus Jehangir Khan Tareen case in which the court had ordered fresh by-elections, but did not accept as fake the educational degree of Siddiq Baloch.

Referring to the rejection of nomination paper for the 2013 general election of former president Pervez Musharraf by the returning officer, Makhdoom Ali Khan stated it was rejected because in 2009 the Supreme Court in the famous judge’s case or the Sindh High Court Bar Association case had declared the Nov-3, 2007 proclamation of emergency as unconstitutional and that President Musharraf violated his oath.

At this justice Ejaz Afzal Khan wondered whether not the case of the counsel had collapsed by his insistence on a prior determination against Musharraf by the Supreme Court.

Meanwhile Advocate Shahid Hamid who represented the children of the prime minister also submitted additional documents on behalf of Finance Minister Ishaq Dar and prime minister’s son in law Capt (retd) Mohammad Safdar.

In his reply Ishaq Dar stated that the Islamabad High Court on Sept 16, 2015 had rejected Farrukh Nawaz Bhatti’s petition seeking his disqualification as Senator for his confessional statement before an accountability court hearing Hudaiybia default case in which he had conceded that he allegedly laundered money on behalf of some well-known business entities to whom he was providing his professional services.

Likewise the evidentiary value of the purported confessional statement had also been adjudicated by the Lahore High Court in 2011 which later quashed the same.

Similarly retired Captain Safdar recalled that Nawabzada Salahuddin Saeed had challenged before the Election Commission of Pakistan that he failed to disclose the assets of his wife (Mariam Safdar) in his nomination form and later in his annual statement of assets and liabilities furnished before the Election Commission of Pakistan did not disclose that his wife owned the four London flats. He had disclosed her assets as per these returns which were attach with his nomination form, the document said.

Moreover, the document claimed, Captain Safdar had been paying regular income tax since joining public service in 1986 and thereafter since election as MNA in 2008.

Published in Dawn January 14th, 2017