Justice Asif Saeed Khosa, who headed the five-member Supreme Court bench that issued the decisive Panama Papers verdict disqualifying former prime minister Nawaz Sharif, made clear on Wednesday that all judges on the bench had agreed on the July 28 judgement.
The content of the minority judgement of April 20 [where the verdict was 3-2] and majority judgement of July 28 may have been different, but they both reached the same conclusion: Nawaz Sharif stands disqualified, said the judge.
The same five-judge bench that decided upon the Panama case began hearing on Wednesday the review petitions filed by former prime minister Nawaz Sharif, his children and Finance Minister Ishaq Dar against the July 28 judgement. The bench also comprises justices Gulzar Ahmed, Ejaz Afzal, Azmat Saeed and Ijazul Ahsan.
Senior counsel Khawaja Haris, who appeared on behalf of Sharif, argued that the two judges who had written dissenting notes against the former premier in the initial April 20 judgement of the case could not have signed the verdict issued by the five-member bench on July 28.
The two dissenting judges in the April 20 order — Justice Khosa and Justice Gulzar — had signed on a "different" verdict on July 28, Haris maintained, after which they were no longer a part of the bench.
Justice Khosa, however, informed the counsel that the final verdict had been signed by all five judges, and the bench members had previously disagreed only over the formation of the Joint Investigation Team (JIT).
"None of the three judges [who ruled in favour of further investigation on April 20] had disagreed with the minority verdict [of disqualifying Sharif]", he emphasised.
Justice Khosa said that the two judges who ruled in favour of disqualification on April 20 did not add anything in the July 28 verdict.
Dissenting judges also sign final judgements, he said, adding that similar examples existed in judicial history.
The hearing has been adjourned until tomorrow (Thursday).
'Right to a fair trial'
During his statements, Haris said that Sharif was disqualified under Article 62(1)(f), arguing that the former prime minister should have been issued a show-cause notice to explain himself.
"Sharif should have been given the chance of a fair trial," he contended.
The counsel also brought up the SC's decision to appoint a supervisory judge to oversee proceedings of the references against the Sharif family in the accountability court, saying that it was in violation of the petitioners' fundamental rights.
No past examples can be found of the decision to appoint a judge who was a part of the five-member bench as the supervisory judge, contended Haris.
Through its judgement, the counsel said, the SC has become a complainant in the case itself.
Haris claimed that the apex court had praised JIT members in its judgement.
"We even praised you," quipped Justice Saeed in response. At this, the counsel offered that the praise for him could be expunged from the verdict, but the bench refused the idea.
Justice Ejaz Afzal Khan acknowledged that the court had praised the JIT investigation, saying that the findings would be scrutinised in the trial court.
When Justice Ijazul Ahsan pointed out that the petitioners had not challenged the April 20 verdict — implying that they had accepted it — the counsel responded that his clients had accepted only the majority judgement that ordered the formation of a JIT.
The counsel also raised objection to Sharif's disqualification over the non-disclosure of an asset, saying that the court did not assess whether the former premier intentionally concealed his assets or they were not revealed due to a mistake.
"Are you saying a poor man should go to jail if he steals 10,000 dirhams, but when a billionaire does it, he should get off scot-free?" asked Justice Ahsan, in a reference to the salary that became Sharif's undoing.
This was not a case of theft, the counsel argued, adding that it was unfair to disqualify someone for life under Article 62(f) for not disclosing a salary.
Haris said that the court could have declared Sharif's election to the National Assembly void instead of disqualifying him for life.
Chief Justice of Pakistan Mian Saqib Nisar had on Tuesday ordered the formation of a five-member larger bench to hear the review petitions filed by Sharif, his children and Finance Minister Ishaq Dar against the Panama Papers case verdict.
Sharif's review petition had contended that his unceremonious disqualification under Article 62(1)(f) of the Constitution could not have been invoked without conducting a regular trial. It further objected to the fact that five members of the bench had signed the July 28 verdict, even though only three judges had examined the JIT report.
It added that the order to protect the tenure of service of the JIT members and not take any adverse action against them without informing Justice Ijazul Ahsan — the monitoring judge assigned to oversee the filing of references by the National Accountability Bureau — had violated Article 175(2) of the Constitution, as well as the principle of separation of powers.
Earlier this month, an apex court bench, headed by Justice Dost Mohammad Khan, had expressed displeasure over the performance of Irfan Naeem Mangi, the director general of Balochistan NAB, but regretted the court’s inability to proceed against him since another bench had passed the order for the protection of the tenure of members of the Panama JIT. Mangi was a member of that JIT.
The review petitions filed by Maryam, Hussain, Hassan and Capt Safdar objected to the constitution of the JIT under the supervision of the apex court, and regretted that the manner in which the JIT had 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.
They have requested the apex court bench to review its order of appointing a supervisory judge of the SC to oversee NAB’s proceedings as well as the accountability court, terming it a denial of justice because the arrangement was inimical to the separation of powers envisaged by the Constitution.
In his review petition, Ishaq Dar had pointed out that the only allegation against him was based on his ‘confession’ recorded on April 20, 2000 in the Hudaibia Paper Mills reference while he was in NAB’s custody. He contended that no such allegation had been levelled against him in that case.
Moreover, he had said, the SC had not given the six-member JIT any directive to investigate him. He alleged that the team had evidently gone above and beyond its mandate. However, the petition added, the court had erred by issuing the directive, which prima facie was an error on the face of the record.