The Probable Fate Of The House Of Sharifs

The Probable Fate Of The House Of Sharifs

Now that round#3 of Operation Panama has kickstarted with the submission of the JIT report before the Supreme Court, the question of whether or not the Sharif family is entitled to the right of fair trial under Article 10-A of the Constitution of Pakistan has become more important. No doubt there are issues requiring a trial by the relevant authorities, pertaining to the offences of tax evasion, money laundering, concealment of assets, possession of assets beyond known sources of income and forgery. However, the constitutional aspect of the possible lack of qualification under Article 62, especially not being “honest” and “ameen“, in the context of sharing dishonest and misleading information by the Prime Minister regarding the title and sources to acquire four London flats; and disqualification under Article 63, especially for holding an office of profit by the Prime Minister, would be decided by the august court on its own.

Nevertheless, in order to appraise the possible instances under these two articles whereby the Sharifs, especially Prime Minister Nawaz Sharif, could be knocked out of the politics, it must firstly be appreciated that Article 62 pertains to the qualifications to be elected as a member of any legislature in Pakistan, including the requisite of being “sagacious, righteous, non-profligate, honest and ameen, there being no declaration to the contrary by a court of law”, as per the Article 62(1)(f). Similarly, the Article 63 relates to the disqualification of any person from being elected or chosen as, and from being, a member of any legislature, including conviction of certain offences and holding an office of profit in the ‘service of Pakistan’ or any statutory body, etc. However, for disqualification under Article 63, the Speaker or the Chair, as the case may be, of the corresponding Assembly or the Senate must refer the matter to the Election Commission which shall finally decide upon the matter.

As far as the Article 62(1)(f) is concerned, it, as mentioned above, requires inter alia any person aspiring to be a member of any legislature to be”honest” and “ameen“, there being no declaration to the contrary by any court. The earlier minority judgment in the Panama case had categorically granted the prayer of the petitioners by declaring that the Prime Minister was not “honest” and “ameen” under Article 62(1)(f) of the Constitution, as he was guilty of sharing misleading information on the floor of the House. The minority judges had primarily disqualified the Prime Minister on the basis of his contradictions and dishonest explanations regarding possession and acquisition of the said properties, without putting them in juxtaposition with the statements/interviews of the rest of the family members, and without finding the need to delve into disputed questions of facts requiring trial.

However, the incumbent bench of the Supreme Court would, in line with their earlier verdict, determine whether or not the joint investigation team (JIT) has been able to establish true facts regarding the title to, and the source of funds for the acquisition of properties in question through cogent, undisputed or reliable evidence, before it could proceed to determine the truthfulness or otherwise of the statements/ interviews of Prime Minister thereof, which may or may not lead to his disqualification under the Article 62(1)(f) for not being “honest” and “ameen“.

Another important provision in this regard is Art 63(1) (d) and (m), a perusal of which would establish that it disqualifies any member thereof if he or she “holds an office of profit in the service of Pakistan”. On the other hand, the alleged holding of “an office of profit” by the Prime Minister in the UAE-based company does not come within the ambit of “service of Pakistan”. However, the Prime Minister can be disqualified on this count on the basis of the concealment of this employment in the nomination papers and in his speeches – thus not being “honest” under Article 62(1)(f); more so, in the context of violating his constitutional oath in this regard. The counsel for the Prime Minister could contend that since this matter was not a bone of contention, there does not arise any question of its concealment, and the matter of concealment of this employment in nomination papers could only be tried by the sessions court under relevant law, before a declaration of disqualification could be given.

All in all, the burden of proof lies on the Sharifs to establish their innocence, given the fact that the knowledge of ownership and source of funds to acquire the said flats lies with them, failing which the Supreme Court could either disqualify any or of all of them under the said constitutional provisions, and/or refer the related issues to relevant authorities for a civil or criminal trial, before a declaration of disqualification could be given. It must be remembered that two judges already seem to have disqualified the Prime Minister for not being “honest” and “ameen“, albeit on the basis of concealment of ownership of the London flats and for sharing misleading information on the floor of the House. Therefore, the fate of the Prime Minister would be sealed if one of the three judges disqualifies him on any count whatsoever, including sharing of misleading – or concealing of – information on the floor of the House.

On the basis of the aforementioned factors and having gone through the earlier decisions of the ‘majority judges’, it is highly probable that the matter would be referred to the National Accountability Bureau (NAB) and other related entities for a trial, after holding that the evidence collected by the JIT corroborated the statement of the Prime Minister that he was not the owner of these flats, and that “cogent, undisputed or reliable evidence” had not been brought on record by the JIT to establish the veracity or otherwise of the statements of Prime Minister regarding sources of funds to acquire said flats. This would be the second best result the Prime Minister would be hoping for, given the fact that these organizations are beholden to him and his government. One may argue, albeit with abundant caution, that this may vindicate the Supreme Court as well without dislodging the house of Sharifs.

 

The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any organization with which he might be associated.

Nauman Qaiser

The writer is an Advocate of the High Court. He tweets @naumanqaiser and can be be reached at naumanqaiser@gmail.com



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