With mere legislation providing some hope after a lifetime disqualification, along with other convictions, lawyers comment on whether the PML-N supremo can return to the seat of power.
While the recent developments paint a rather hopeful picture for PML-N supremo Nawaz Sharif, major legal hurdles remain in his path to contest the upcoming general elections on Feb 8, 2024.
The biggest one arguably is the infamous Panama Papers case, in which he was disqualified from holding any public office in July 2017, and subsequently, stepped down from the role of the prime minister.
He was handed a disqualification of 10 years from holding a public office in the Al-Azizia Steel Mills corruption reference along with seven years in jail.
The Supreme Court, in a subsequent decision, said the disqualification under Article 62(1)(f), which sets the precondition for a member of parliament to be “sadiq and ameen” (honest and righteous) was for life.
The former premier was also sentenced to 10 years in jail in the Avenfield Apartments reference in July 2018.
Since his return to the country last month, the obstacles to which were removed by bail in two cases, Nawaz has been able to secure the desired results from the courts.
In the Toshakhana case, an accountability court has revoked Nawaz’s perpetual arrest warrants, granted him bail and ordered the unfreezing of Nawaz’s properties. The court will resume hearing the case on Nov 20 (Monday).
Dawn.com has reached out to lawyers to seek their views on whether the deposed former premier can contest the upcoming polls based on the current status of the charges he is facing.
Panama case disqualification
Lawyer and columnist Abdul Moiz Jaferii termed the lifetime disqualification in the Panama case as the “main hindrance”.
While the Constitution is silent on the period of disqualification under Article 62(1)(f) (qualifications for membership of Parliament), the Supreme Court had ruled in 2018 that disqualification under the same is for life.
However, amendments were made to the Elections Act 2017 earlier this year, making the disqualification “for a period not exceeding five years” from the court declaration.
Expanding upon the conundrum, Jaferii noted that the Elections Act amendment that “purports to create a limit upon the disqualification for moral turpitude-related offences falls foul of the constitutional interpretation” of Article 62 (1)(f) as given by the SC’s larger bench.
“Hence, even if his [nomination] papers are accepted, this will be a strong challenge where the relevant subordinate courts will have to uphold the Supreme Court judgment,” the lawyer stated.
Stating his view, lawyer Muhammad Ahmad Pansota said Nawaz cannot contest the elections “at this point” and described how the legal conflict is likely to unfold in the coming weeks.
“I think it all boils down to when Mr Nawaz Sharif will file his nomination papers,” he said, adding that the papers would be challenged by someone. The subsequent decision by the returning officer would then go before an election tribunal and then before the Lahore High Court, Pansota said.
The matter would then land in the apex court, “where it will be settled and the Supreme Court will decide the conflict between the law — an ordinary legislation — and a judgment of the Supreme Court”, Pansota forecast.
“I personally believe that legislation should prevail, but then there is a judgment of the Supreme Court,” he noted.
The lawyer pointed out that the apex court’s judgment interpreting the Constitution “cannot be overruled by an act of the Parliament” unless by a constitutional amendment.
Meanwhile, Barrister Rida Hosain termed the SC’s 2018 verdict of lifetime disqualification a “flawed and moralistic judgment”.
“Essentially, the logic was that once the court had given such a damning declaration, it was to be permanent,” she told Dawn.com. Commenting on the tweaks to the election law, she said it, “by design, attempts to undo the lifetime disqualification judgment”.
Echoing Pansota’s views, Hosain also highlighted that if a time limit was to be added to the Constitution’s Article 62(1)(f), it ought to be done through a constitutional amendment.
“There is a possibility that this amendment is challenged on the basis that the Supreme Court’s interpretation of the Constitution cannot be undone through ordinary legislation. […] On the other hand, Nawaz Sharif could argue that since the Constitution is silent, a time period could be introduced through the law,” she stated.
Emphasising the importance of the SC verdict, lawyer Usama Khawar said: “Nawaz Sharif can not contest general elections unless the Supreme Court verdict interpreting Article 62 and Article 63 is overturned by a larger bench.
“The constitutional viewpoint is that ordinary legislation like [an] Election Act amendment cannot override the Constitution,” the law instructor said.
However, at the same time, Khawar stated that the apex court’s judgment “does not automatically bar Nawaz Sharif from contesting elections unless a court of law first declares” the changes to the Elections Act contrary to the 2018 verdict and strikes them down.
Lawyer Ayman Zafar also was of the view that the election law amendments were of no benefit to the PML-N supremo for two reasons — their application was not retrospective and they lacked the authority to overturn SC’s ruling of disqualification for life.
“The promising legislation awaits interpretation by the superior courts, and it is contingent upon the court’s review and potential nullification,” she added.
Zafar said till the decision of the SC of lifetime disqualification is not reconsidered, “Nawaz will remain ineligible to hold public office till the courts’ respective declarations are upheld against them”.
Other legal challenges
The Panama Papers case is already a major obstacle for Nawaz to overcome but it is not the only one.
Hosain brought attention to Article 63(1)(h) that bars an individual convicted of a criminal offence from being elected as a member of the Parliament for five years after release.
Therefore, she asserted, “Nawaz Sharif’s convictions in the Avenfield and Al-Azizia cases hold the field. If the elections were held today, Nawaz Sharif would not be able to take part. Unless his convictions are either set aside or suspended by a court, he cannot contest elections.”
Referring to the Punjab interim government suspending the former premier’s sentence in the Al-Azizia reference, Hosain cited an SC judgment (2019 SCMR 382) wherein it had ruled that suspension of sentence is not enough to overcome the disqualification but rather, it is the conviction which must be expressly suspended or set aside.
The barrister stated that the fate of the PML-N supremo’s appeals in the IHC will determine whether the disqualification under Article 63(1)(h) still engages for the upcoming elections. “Put simply, if the convictions do not stand in appeal, the disqualification under this Article will cease.”
Pansota and Khawar also highlighted that Nawaz’s sentence in the Al-Azizia case was suspended but the conviction was not set aside yet.
“So, on these grounds, I don’t think he (Nawaz) can contest elections,” Pansota told Dawn.com.
Khawar pointed out that four cases could potentially bar the former premier from contesting elections — the Avenfield and Al-Azizia convictions that he termed “immediate legal challenges”, the Panama Papers disqualification, and the Toshakhana case.
He further said that as per a judgment of the apex court, persons disqualified under Articles 62 and 63 are barred from becoming the head of a political party.
Referring to the appeals in the Al-Azizia and Avenfield cases, Zafar stated: “The outcome of these appeals holds significant implications for the political landscape of Pakistan, as the former PM seeks to secure a reversal of the legal decisions that currently constrain his political aspirations.”
She added that the Avenfield case may raise certain concerns for Nawaz, in addition to already existing convictions.
Zafar pointed out that the probable “extended legal proceedings” on the Panama case “may ultimately comprise the Supreme Court reconsidering” its 2018 verdict declaring the disqualification for life.
“Should the Supreme Court choose to overturn its earlier ruling, a subsequent legal consideration comes into play,” she noted, adding that the Election Act amendment would then become applicable.
“In such a scenario, [Nawaz] Sharif could become eligible once again for public office.”
Meanwhile, Khawar stated that to the extent of the Al-Azizia reference wherein Nawaz was disqualified for 10 years, that conviction would not bar the ex-prime minister from contesting elections if the IHC overturns/sets aside the same when hearing the appeal.
To conclude, in Zafar’s words: “Should Nawaz Sharif entertain aspirations of a return to the office of prime minister for a fourth term or seek electoral participation in either house of parliament, he confronts an array of legal complexities, the resolution of which hinges largely upon the events that are to unfold in the weeks to follow.”