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Tuesday Aug 08 2017

Panama Case: A review petition is a bad idea

In the aftermath of the Panama papers judgment, Nawaz Sharif, the former prime minister, does not have many options. One possible remedy is to challenge the judgment before the Supreme Court, through a review petition, under Article 188 of the Constitution of Pakistan, 1973. 

The Article is reproduced below: - 

"188. Review of judgments or orders by the Supreme Court.-The Supreme Court shall have power, subject to the provisions of any act of 1[Majlis-e-Shoora (Parliament)] and of any rules made by the Supreme Court, to review any judgment pronounced or any order made by it"

Now, the scope of review, under the above-referred Article, is quite narrow. By any stretch of the standard, it does not give Sharif a chance to get his case re-examined, which otherwise would have been possible, had there been a right of appeal available to him. Yet, the former premier’s legal team is insisting upon challenging the judgment and therefore risking, in my opinion, the possibility of a dangerous outcome.

Under the review jurisdiction, the court can only review the judgment if it believes there is a mistake or an error apparent on the face of the record. This doesn’t seem to be the case here, even if the Pakistan Muslim League-Nawaz’s party members are disturbed with the disqualification of their leader under Article 62(1)(f) of the Constitution. Till now, the critique of the verdict, it seems, has been more about the lack of detailed reasoning rather than the final word.

If Sharif is hoping that the review petition will lead to the July judgment being set aside, he cannot be more wrong. More chances are of the bench further clarifying its reasoning for disqualifying the prime minister and thereby making it practically impossible for Sharif to challenge it anywhere else.

Instead, the PML-N chief could wait till at least one of the judges from the bench has retired. If then he challenges the judgment in court, the chief justice will have to constitute a larger bench to hear his case. Although, the outcome, I believe, will still not be very different but the court may consider elaborating the judgment’s reasoning, specifically with respect to the issue pertaining to Sharif’s Iqama.

The disqualification has also been attacked by the critics, as having been based on misdeclaration which could have been unintentional. Laws requiring a declaration of assets, in general, do not recognize intention as a valid defence to misdeclaration.

Internationally, the element of mens rea, criminal intent, has gradually been removed in the context of corporate taxation laws thus making misdeclaration an incriminating offence. In the UK, recently the corporate taxation laws have been changed to remove the element of intention completely for the purposes of misdeclaration. In this case, Pakistan’s Supreme Court interpreted the law using external aids, such as dictionary meanings, as long as it was in consonance with the spirit of the law. But even if, for the sake of argument, the resort would have been made under Pakistan’s Tax Ordinance 2001, the bench would have come to the same conclusion. Its Section 12, if read with Section 69 (c) of the Ordinance, defines the word “received” as also “made available.”

For now, Sharif should focus instead on contesting the National Accountability Bureau’s references vigorously and with the best legal team. The outcome of the NAB trials, in presence of the nominee judge of the court, can be quite drastic if not paid proper attention to. If convicted, the former prime minister is likely to face a sentence varying between seven to fourteen years which will be unprecedented in Pakistan’s history.

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

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.

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