ISLAMABAD: Former prime minister Nawaz Sharif on Tuesday showed his unwillingness to attend the hearing by a Supreme Court bench to determine the length of disqualification handed down under Article 62(1)(f) of the Constitution.

“My joining of the proceedings at this juncture before this bench may prejudice their [other] cases. Therefore, in peculiar facts and circumstances, I don’t wish to be part of the proceedings,” said an application submitted to the apex court on behalf of Mr Sharif.

Earlier, the Supreme Court had issued a handout with a directive to all concerned to treat it as a public notice and attend the hearing. Otherwise, the matter would be decided ex parte.

When Mr Sharif did not appear, the court repeated the notice with an observation that any decision taken by it in the matter might affect him.

In response to the notice, advocate Azam Nazeer Tarar, representing Mr Sharif, had appeared before the court on Jan 31 and sought time to consult the former prime minister on the matter.

But instead of appearing before the court, Mr Sharif submitted an application explaining that he had discussed the issue with his party’s leaders and felt that since the court had taken up the matter on the motion of many other aggrieved parties having stakes in the matter, his joining of the proceedings at this juncture might prejudice their cases.

Former PM argues that no perpetual bar can be imposed under the Constitution

The application contended that had he (Mr Sharif) been a party to the original proceedings, he would have requested Justice Azmat Saeed Sheikh and Justice Ijaz-ul-Ahsan to kindly recuse themselves from the bench as they had already rendered a judgement about his qualification as a member of parliament and expressed their opinions about him on a number of occasions.

Therefore, the application said, it would be unfortunate if they were to decide again the issues keeping his person in their view.

Mr Sharif said that he felt the matter was settled by now and to take part in the election process was a fundamental right and, therefore, no perpetual disqualification could be imposed by interpreting Article 62 of the Constitution.

A time limit could have been provided by parliament, but since it had not been done so, the issue of qualification under Article 62 was confined only to the election in question, the application explained, adding that being a strong proponent of democracy, he (Mr Sharif) believed that it was the right of the people to participate in the process of election and to reject or elect candidate(s) of their choice.

“They [people] enjoy an inalienable right to elect their representatives through a true democratic process and not be given the list of selected people through the process of elimination,” it added.

Elections Act

When the Supreme Court resumed hearing the petitions challenging the Elections Act 2017, Advocate Azam Tarar informed it that Nawaz Sharif was not interested in engaging counsel in the case because he felt that his party had elected him as its head and, therefore, the PML-N and parliament should defend the law.

Advocate Kamran Murtaza sought time to submit a reply to the Elections Act on behalf of the National Assembly as he had to submit his nomination papers for the upcoming Senate elections.

The court observed that it was not necessary to make the Senate or the National Assembly a party in the matter as the federation was already represented.

The court reminded the PML-N’s senior leader Raja Zafarul Haq, who attended the hearing, he had stated that Nawaz Sharif would be represented in the case.

The court observed that it would decide ex parte if Mr Sharif chose not to be a party in the matter. However, he might join the proceedings any time if he wished to, the court added.

Advocate Salman Akram Raja told the court that he would be representing the PML-N in the Elections Act case.

During the proceedings, the chief justice observed that laws could not be declared illegal without adhering to certain parameters, adding that mala fide was not enough ground to strike down the same.

Justice Ijazul Ahsan, a member of the bench, reminded that it was a unanimous decision (in the Panama Papers case judgement) that Nawaz Sharif was not honest. Referring to Article 63, he wondered how a person declared to be dishonest could control honest people. “Can he be allowed to become party head?” the judge asked.

Senator Farogh Nasim, the counsel for Awami Muslim League chief Sheikh Rashid Ahmed, argued that the Elections Act had been adopted by parliament 17 days after the rejection of the review petition filed by Nawaz Sharif in the Panama Papers case. He said the PML-N had amended its constitution on Oct 3 last year and Mr Sharif had been re-elected as party head the next day. “This shows that the entire objective behind bringing the law was to benefit an individual who had been disqualified by the Supreme Court.”

Justice Umar Ata Bandial observed that the petitioners had to prove that the Elections Act, which had been challenged before the court, militated against the Constitution.

The counsel argued that an individual, who had been disqualified for not being truthful and honest, could control the entire parliament as being head of the ruling party and, therefore, the act was also against Articles 62 and 63 of the Constitution.

One of the petitions argued that people had a right to join any political party, including the PML-N, but this right would be completely jeopardised if the party was headed by a disqualified person.

During the hearing, the chief justice said he would not take fresh suo motu notices until the notices already taken were decided. “The court never interferes in executive policies, but the sole purpose of taking suo motu notices by the court is to point out and identify issues,” he observed.

Published in Dawn, February 7th, 2018