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Thursday Jul 27 2017

Can the Supreme Court disqualify the Prime Minister?

The centre of the debate around the Panama papers case is whether Prime Minister Nawaz Sharif can be sent packing under Article 184(3) of the Constitution of Pakistan. During the proceedings, Sharifs’ counsels took great pains to argue the case in a way that mitigates the possibility of a direct disqualification. But was the concern valid?

Let’s take a look at Articles 184(3), 187(2), 62 and 63 of the Constitution to clarify the muddied air. The matter before the court mainly involves two issues - disqualification under Article 184(3) and an explanation of money trail used to set up offshore companies.

Articles 184(3) and 187(2) empower the apex court to assume jurisdiction in a matter involving public importance and violation of fundamental rights. These two articles not only give the judges broad power to adjudicate upon an issue of disqualification but also to prescribe a procedure.

The Supreme Court has in the past sent home members of the national and provincial assemblies without a trial. So, there is precedent.

In cases, reported as PLD 1994 SC 621 (Wasey Zafar's case), PLD 1998 SC 161 (Malik Asad Ali's case), 1999 SCMR 1072 (Gatron Industries' case), 1999 SCMR 1619 (Benazir Bhutto's case), 2003 SCMR 629 (Badshah Begum's case), Yousuf Raza Gilani's case, (Dual Nationals cases), PLD 2011 SC 997 (MemoGate case), the supreme court arbitrators assumed direct jurisdiction under 184(3) to sack parliamentarians.

Now that we have established that the prime minister’s disqualification is not out of bounds for the court, the next important question to address is the criteria laid down under Article 62 and 63. According to both articles the court requires irrefutable and undisputed material before arriving at any conclusion.

In cases reported as PLD 1970 SC 98 (Lt. Col. Farzand Ali's case), PLD 2016 SC 97 (Sadiq Baloch’s Case) and PLD 2017 SC 70 (Rai Hassan Nawaz's case) elected officials were disqualified on the ground of not declaring their assets. In fact in PLD 2016 SC 97 the court stated that a “person who was untruthful or dishonest or profligate has no place in discharging the task of law making and administering the affairs of state.” But then the court also highlighted, aptly, that “disqualification is not possible without establishing it through incontrovertible evidence”.

Which leads to the next query. In this case, does the court have the irrefutable and undisputed facts to de-seat Nawaz Sharif?

One aspect of the case that could go against the prime minister is the alleged withdrawal of salary from the FZE Capital, a company registered in the UAE.

Sharif’s counsel argues that he disclosed information about the FZE in the appendix attached with his nomination papers. But would the court consider it at this late stage?

Furthermore, in addition to declaring the company in his nomination papers, Sharif is also under a legal obligation to declare it in his tax returns. Why he did not disclose it in the mandatory Election Commission wealth statement 2013/14? These are all questions that will figure into the final verdict.

Whichever way the case sways one debate needs to be put to rest, the Supreme Court of Pakistan has the legal domain to send an elected official home.

Note: The views expressed are those of the author, and do not reflect the official policy or position of Geo News or the Jang Group.

- Pansota is an Advocate High Court, practicing in Lahore. He tweets @pansota1

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