• Legal team to seek hearing before full court or larger bench

• Petition regrets court’s assumption of NAB powers, seeks fair trial for ousted PM and family

• Assails appointment of supervisory judge, protection granted to JIT members

ISLAMABAD: Former prime minister Nawaz Sharif finally moved a long-awaited review petition before the Supreme Court on Tuesday, arguing that his unceremonious disqualification under Article 62(1)(f) of the Constitution could not have been invoked without conducting a regular trial.

Moved by his counsel Khawaja Haris Ahmed, the review petition argues that the unanimous verdict of July 28 “suffers with manifest error apparent on the face of the record and violates his fundamental right to fair trial” and should be reviewed.

Mr Sharif’s legal team is also weighing the option of moving a separate request seeking the constitution of a full court, or a panel larger than the five-judge bench that initially heard the Panama Papers case, moved by Pakistan Tehreek-i-Insaf (PTI) chief Imran Khan and others.

In addition to the review petition, a separate application was also filed with a request to suspend the final verdict in the Panama Papers case as long as the review petition is pending.

The application contends that the July 28 order was coram non judice, since it was passed by a five-judge bench that had no jurisdiction to hear the matter, since only three of those judges had examined the Joint Investi­gation Team’s (JIT) report.

Mr Sharif’s legal team also maintained that by signing the final verdict, the two other judges had actually pass­ed two final judgements in the same case, something un­pre­cedented in judicial history.

The petition also argued that the order to protect the tenure of service of JIT members and not take any adverse action against them without informing Justice Ijaz-ul-Ahsan — the Supreme Court monitoring judge assigned to oversee the filing of references by the National Accountability Bureau (NAB) and other actions — violated Article 175(2) of the Consti­tution, as well as the principle of separation of powers.

The petition also pointed out that the question of disqualification should have been taken up by five judges, not three, from the outset.

‘Receivable income’

Even if it was presumed that the salary from Capital FZE was a “receivable”, the review petition argued, it still did not form part of Mr Sharif’s assets and no adverse inference can be drawn against him for not disclosing this salary as part of his assets and liabilities in his nomination forms.

“This with great respect is contrary to the basic accounting principles,” the review petition argued, adding there were two recognised methods of accounting: the cash method and the accrual method.

The cash method applies when income is stated in accounts when it is actually received, whereas under the accrual method, the income is stated in the account as and when accrued.

Citing Section 12(2) of the Income Tax Ordinance 2001, the petition argued that according to its definition, salary was to be declared income only after it was received. Thus, under the laws of the country, salary is not considered part of any individual’s assets until it is actually received or realised.

NAB references

The directions issued to NAB to take forward the JIT’s investigation, what evidence to look into, how many references to file before which accountability court, and monitoring and supervision of the investigation and trials by a Supreme Court judge was in violation of the principle of trichotomy and articles 25 and 175 of the Constitution, as well as due process and the right to a fair trial, as mandated by articles 4 and 10A of the Constitution.

Referring to the directions regarding the filing of multiple corruption references against Nawaz Sharif and his family, the petition contended that the July 28 judgement was per incuriam (lacking due regard for the law).

The petition claimed that these directions amounted to the Supreme Court assuming the functions of the NAB chairman and an accountability court judge, arguing that this was repugnant to the Constitution.

The Supreme Court may have powers to direct an agency to perform its functions and discharge its responsibilities in accordance with law, but there is no law that vests the court with the authority to assume the functions of any such agency or institution, the petition maintained.

The July 28 order is also discriminatory, the petition regretted, since it purports to target the Sharif family, encouraging NAB to initiate a witch-hunt against the petitioner and his family.

Moreover, direction to the trial court to decide the references within six months is likely to prejudice Mr Sharif’s case before the accountability court, especially when the Constitution does not confer the Supreme Court any jurisdiction to superintend and oversee the proceedings of the subordinate judiciary, the petition maintained.

Published in Dawn, August 16th, 2017