ISLAMABAD: The children and son-in-law of former prime minister Nawaz Sharif moved a review petition before the Supreme Court on Friday questioning its July 28 directions to supervise future proceedings in the trial court.

The petition highlighted that the Constitution did not confer upon the apex court the jurisdiction to superintend or oversee proceedings of the subordinate judiciary.

The only provision that conferred jurisdiction to superintend subordinate judiciary was Article 203 of the Constitution, under which only a high court could monitor the subordinate judiciary, the review petition said.

Argue that court’s decision to oversee proceedings of the trial court amounts to denial of their right to due process

The petition, filed by Advocate Salman Akram Raja on behalf of Maryam Nawaz Sharif, Hussain Nawaz, Hassan Nawaz and retired Capt Muhammad Safdar, cited excerpts from the judgements of three judges of the Supreme Court — Justice Asif Saeed Khosa, Justice Gulzar Ahmed and Justice Ijaz-ul-Ahsan.

Along with the review petitions, Advocate Raja also moved a stay application requesting the apex court to suspend the final operation of the July 28 judgement, in which the National Accountability Bureau (NAB) was ordered to institute corruption references against the petitioners, till the petitions were pending.

Earlier on Aug 15, Mr Sharif had filed a similar review petition arguing that Article 62(1)(f) of the Constitution could not be invoked to disqualify him without holding a regular trial. Finance Minister Ishaq Dar, also facing corruption references, had filed his review petition on Aug 21.

The review petition filed on Friday contains excerpts from separate judgements, of a five-judge Supreme Court bench, authored by Justice Asif Saeed Khosa, Justice Gulzar Ahmed and Justice Ijaz-ul-Ahsan, to argue that their observations amounted to in fact denial of the rights of the petitioners to present their defence and the evidence that they relied on before a trial court.

It also cited the observations of Justice Ejaz Afzal Khan and Justice Sheikh Azmat Saeed to recall that they did not have any findings other than appointing a six-member Joint Inves­tigation Team to probe allegations levelled in the Panama Papers case against the Sharif family. It said the entire proceedings which culminated in the July 28 judgement had obviated the possibility of a fair trial before the trial court and therefore the final judgement was liable to be reviewed and set aside.

From the very outset it was clear that the determination of the allegations made in Pakistan Tehreek-i-Insaf chief Imran Khan’s petition required the determination of disputed questions of facts pertaining to events spread over five decades. Nevertheless, the Sup­reme Court, through various judgements authored by different members of the bench, had carried out an examination of potential defences that the petitioners might have taken before the trial court, it said.

Referring to the directions to NAB to file corruption references, the petition argued that such references would amount to denial of justice and therefore such directions were liable to be reviewed and set aside. Without a trial being conducted in accordance with the law, the proceedings before the apex court and its different judgements had resulted in evidence that was yet to be presented by the petitioners before a competent trial court, the petition said.

Referring to the constitution of the JIT under the supervision of the apex court, the petition regretted that the manner in which the JIT conducted its proceedings and compiled its report and the recommendations made by the court had blocked the petitioners’ access to justice in accordance with the law. This was a denial of their fundamental right to due process guaranteed by Article 10A, read with Articles 4 and 175 of the Constitution.

The appointment of a supervisory judge of the Supreme Court to oversee NAB’s proceedings as well as the accountability court, had further compounded the denial of justice because the arrangement was inimical to the separation envisaged by the Constitution between the judicial functions and powers vested in the judiciary and the executive powers that were to be exercised by different state functionaries, it said.

“It is not understood if the overseeing by the apex court judge is meant to issue directives to the trial court,” the petition asked, adding that if that was so, the ultimate right of appeal to the apex court would stand compromised on account of the involvement of the apex court in the conduct of the trial.

And if the overseeing of the trial was only meant to make the trial judge aware that his adjudicatory exercise was being monitored then the right of the petitioners to a free and fair trial also stood vitiated especially when the Constitution did not confer any jurisdiction to superintend and oversee the proceedings of subordinate judiciary, the petition said.

It argued that the proceedings before the three-judge implementation bench of the Supreme Court were distinct proceedings and not a continuation of the proceedings before the five-judge bench that had rendered the earlier April 20 judgement.

Published in Dawn, August 26th, 2017