PML-N move to send presidential reference to apex court over contradictory judgementsPakistan
ISLAMABAD: The ruling Pakistan Muslim League-Nawaz (PML-N) has decided in principle to request President Mamnoon Hussain to seek the opinion of the Supreme Court full bench on two ‘contradictory’ judgements including the one that removed Nawaz Sharif from the Prime Minister office.
Legal minds in the PML-N told Dawn on Friday that the issue had already been discussed with the party’s supreme leadership. During the discussion, the two ‘contradictory’ judgements were identified, they said, adding that at least two members of the SC bench that gave Panamagate verdict were also part of another bench that handed down judgement in a dispute between the Securities and Exchange Commission of Pakistan (SECP) and the State Bank of Pakistan (SBP).
Ruling party may approach president to seek SC full bench opinion on two verdicts including one related to former PM’s removal
Earlier on April 2, 2011, the Supreme Court had been approached by the then president Asif Ali Zardari under its advisory jurisdiction to seek an opinion on revisiting the death sentence awarded to former prime minister Zulfikar Ali Bhutto through a presidential reference under Article 186 of the Constitution.
Article 186 of the Constitution related to Advisor Jurisdiction says: “If, at any time, the President considers that it is desirable to obtain the opinion of the Supreme Court on any question of law which he considers of public importance, he may refer the question to the Supreme Court for consideration.”
In the judgement of July 28, 2017 the SC bench comprising Justice Justice Ejaz Afzal Khan, Justice Azmat Saeed Sheikh and Justice Ijazul Ahsan relied upon dictionary definitions to substantiate that Mr Sharif was dishonest as he did not declare the receivable salary in his assets declaration.
The bench observed that since Mr Sharif did not declare his receivable salary as an asset therefore, the court disqualified him to hold the Prime Minister office. Later, the apex court also disqualified him from heading his party.
According to the SC bench, the receivable salary is also an asset. It observed: “The word asset has not been defined in the Representation of the Peoples Act, 1976, (ROPA) therefore, its ordinary meaning has to be considered for the purposes of this case.” Subsequently, the bench relied upon Black’s Law Dictionary as well as Business Dictionaries to substantiate the case against the former prime minister.
Three months after Mr Sharif’s disqualification, a three-member bench comprising Justice Ejaz Afzal Khan, Justice Ijazul Ahsan (both also on the Panamagate bench) and Justice Qazi Faez Isa passed another judgement passed in a dispute between the SECP and SBP. While deciding this case on Oct 27, 2017, the SC bench declared that the “reference to the dictionaries by judges, without first examining the statutory provision and its context, was inappropriate. Such an approach may result in incorporating into the legislation something which it did not contain, and what the legislature did not intend”.
The judgement added: “Judges should not create liability by interpretative techniques. It will be apt to quote Lord Diplock “it endangers continued public confidence in the political impartiality of the judiciary which is essential to the continuance of the rule of law, if judges, under the guise of interpretation, provide their own preferred amendments to statues which experience of their operation has shown to have had consequences that members of the court before whom the matter comes consider to be injurious to the public interest.”
Sources in the PML-N said that there was a proper law for the definition of receivable salary — Income Tax Ordinance (ITO) 2001, which is considered very comprehensive not only in Pakistan and but was also quoted abroad. Under the said law, Mr Sharif was not required to declare “receivable” salary in his nomination papers or any other declaration or had shown it as “asset”, the sources explained.
As per Section 12 of the ITO 2001, salary is an amount received by an employee in a tax year.
The Oct 27 judgement in the dispute between the SECP and the SBP has been reported in All-Pakistan Legal Decision, commonly known as “PLD”, in 2018.
As there is no right to appeal against the matters which the apex court entertain under Article 184/3 of the Constitution and under suo motu jurisdiction, a presidential reference would be sent to the apex court under Article 186 of the Constitution in order to resolve the issue, the sources said.
Barrister Jahangir Jadoon, a senior member of PML-N Lawyers Forum, when reached said that this particular issue had been discussed with the party’s supreme leader Nawaz Sharif. It was decided that the lawyers’ forum would send a request to President Hussain in this regard.
Speaking to Dawn, PML-N Senator Pervaiz Rashid, however, said a decision would be taken after thoroughly examining the relevant provisions of law. “Sending reference under Article 186 is one of the legal options the PML-N is considering to opt for redressal of our grievances,” he added.
Published in Dawn, March 24th, 2018