Lawyers unpack what SC ruling means for Nawaz’s future

KARACHI: Lawyers say that the Supreme Court throwing out the retrospective appeal provision in the SC (Practice and Procedure) Act case makes matters complicated for Mian Nawaz Sharif’s political future. Largely welcoming the verdict as the correct constitutional interpretation, legal experts also say that the practical fallout of the ‘historic’ verdict may be challenging to tackle.

Speaking to The News, Supreme Court advocate Salman Akram Raja says that he sees the “main verdict” to be the 8-7 decision of the court to set aside the retrospective provision in the law. Raja says that “the whole point of this law was to provide [this retrospective appeal provision] so that has been rejected 8-7 and that is the most important part of this judgment.”

How does that affect Nawaz Sharif’s political ambitions and legal challenges? Raja says that “Mian Nawaz’s political future is in some difficulty. How does he contest the next election? He files his papers and the returning officer says OK, since there’s a statute limiting the disqualification period, and approves but then the matter will go to the high court. The high court could say there is a Supreme Court judgment interpreting the constitutional Article 62(1)(f) and who knows they could strike down the law at the high court level. And then the appeal could again go to the Supreme Court and a larger bench of the Supreme Court would have to overrule its earlier decision [regarding Article 62(1)(f)]. It won’t be straightforward; Mian Nawaz will remain mired in litigation.”

Lawyer Abdul Moiz Jaferii also feels that “the retrospective appeal being thrown out makes matters quite complicated for Nawaz Sharif and it is difficult to see how he will feature in the next election cycle. The Election Act amendments are clearly in violation of the Supreme Court’s Article 62(1)(f) interpretation. That judgment is deeply flawed and needs to be revisited. But until it is revisited, the Election Act amendments are clearly illegal and any challenge to Nawaz Sharif’s attempt to contest elections will likely succeed.”

Responding to the theory that a restored Supreme Court Review of Judgments & Orders Act 2023 could allow Sharif to file for a review in the disqualification matter, Raja says that since the expanded review law was struck down after the enactment of the SC Practice and Procedure Act, “in theory an appeal can be filed against that decision in front of a larger bench. I don’t know if an appeal has already been filed or not since there’s a 30-day limit. A larger bench could set aside that judgment and open the door for Mian Nawaz to file a review.” He however wonders whether they would allow Sharif a second review since he “had already filed a review against his disqualification in 2017 and that review was dismissed. Even if the law were restored, there would be a question then whether a second review is available to people whose review had been dismissed in the past. It’s not that clear-cut.”For Supreme Court advocate Basil Nabi Malik, the removal of the retrospective appeal provision “seems to block one of Nawaz Sharif’s avenues back into active politics. Allowing an appeal prospectively is certainly welcome, though denial of such a right retrospectively would be seen by the PML-N as a direct setback to them.”

On the PML-N using other ways, he says that “it is worthy to note that in the Panama cases, if I am not mistaken, review petitions had been filed and dismissed. As such, it may be argued that the Act only provides for an appeal against an order or judgment under Article 184(3), whereas no judgment or order under Article 184(3) remains after the passing of an order dismissing the review petitions, which would then be an order in review jurisdiction.”

High court advocate and former faculty at LUMS Hassan Abdullah Niazi says that “the court got the retrospective appeal issue correct.” He is also of the opinion that “the power to grant an appeal requires a constitutional amendment so it will be interesting to see how the Supreme Court justifies upholding the appeal provision in the law for prospective cases”.

Niazi otherwise feels that the “majority verdict upholding the Act is historic and is, in my opinion, the correct interpretation of the constitution. While we will have to wait for the detailed judgment, a few key legal principles are likely to flow from this decision based on the short order. The most critical one is that parliament has been deemed competent to legislate on matters relating to the procedure of the Supreme Court. This is a substantial shift from the prevailing Supreme Court jurisprudence that was fiercely protective of its domain.”

Malik too says that “the verdict has correctly determined that the [SC Practice and Procedure] Act is in accordance with the constitution.” He sees the verdict as representing a “balancing of different and divergent viewpoints on the legal intricacies involved, which is why certain judges may agree on one point but not another. Although the acknowledgment of parliament’s competence to legislate on such matters of practice and procedure may be legally tenable, the practical fallout will be one to watch out for.” Not everyone sees the judgment in the same light though. Jaferii says that while “the way the full court was televised and the entire process was a welcome breath of fresh air, I am more inclined to agree with the minority judges in that this is an encroachment by parliament into the domain of the judiciary. I also agree that this would not be possible had the past chief justices done their job. But as was argued, two wrongs don’t make a right. Not to recognise a transgression for what it is, is a premise I consider flawed. If the parliament lacks competence to legislate on the rules and procedure of the Supreme Court, then this competence cannot be conferred on the simple premise that they are after all trying to do a good thing.”Barrister Rida Hosain also calls the verdict as paving “the way for further parliamentary interference into the judicial space. It means that the Supreme Court is subservient to parliament in terms of its practice and procedure. It is a problematic precedent to set.” She adds that although the “majority also accepts that a prospective right of appeal can be created against decisions of the Supreme Court handed down under Article 184(3), the constitution does not contain any such jurisdiction. This cannot by any stretch be called ‘enlarging’ jurisdiction, it is quite clearly an entirely new jurisdiction. Effectively, the constitution has been altered by ordinary legislation.”

Conceding that “some may worry that [the verdict] will open the door to parliament interfering in the judiciary”, Niazi thinks that “the detailed judgment will address this by saying that while parliament can legislate on these matters, if any Act is found to violate the independence of the judiciary it will be struck down.” The Wednesday verdict, says Niazi, will mean an “end of the era where the Supreme Court’s procedure and decisions on suo-motu cases were dominated by the opinions of one person.... The chief justice voting in favour of curtailing his own powers is something we should commend.”