Four final judgments in one case unprecedented: Nawaz’s lawyer

ISLAMABAD: Deposed prime minister Nawaz Sharif has expressed the view in his review petition that the original five-member bench headed by Justice Asif Saeed Khosa had become “functus officio” (expired) after it had handed down its judgment on April 20.

After the July 28 disqualification of Nawaz Sharif, this point was repeatedly raised and emphasized by leading respected lawyers in their comments in black and white and on TV channels.

The well-drafted petition, prepared and filed by Khawaja Haris, advocate, raised a number of vital points, assailing the ruling, praying to recall it. He also found fault with the constitution of the special bench comprising three of the judges who had formed the original panel.

While praying for the suspension of the judgment during the pendency of the review petition in a separate application, the lawyer wrote that it is evident that the July 28 order is coram non judice in that it has been passed by a five-member bench which had no jurisdiction in the matter, that the directions given to the National Accountability Bureau (NAB) as to how to proceed with the investigation, what evidence to look into and collect, how many references to file and before which accountability court, as also the monitoring, supervising and overseeing the investigation and trial of these references, is violative of the principle of trichotomy of powers, and of Articles 175 and 25 of the Constitution besides being violative of the principle of due process as mandated by Article 4 and of Nawaz Sharif’s right to fair trial as guaranteed by Article 10-A, while the declaration given against him under Article 62 (1)(f) and Section 99 (1) (f) of Representation of People Act (ROPA) is also per in curium and has been rendered, it is submitted with respect, in breach of his fundamental right to fair trial.

Coram non judice, a Latin phrase, is a legal term typically used to indicate a legal proceeding held without a judge, with improper venue such as before a court which lacks the authority to hear and decide the case in question, or without proper jurisdiction.

The review petition pointed out that on the face of the record, there are, as a matter of fact, four final judgments passed in the Panama case. The first was the minority verdict passed on April 20 by Justice Khosa and Justice Gulzar Ahmad; the second being the majority decision of Justice Ejaz Afzal Khan, Justice Sheikh Azmat Saeed and Justice Ijazul Ahsan on the same date; the third being the ruling of these three members on July 28; the fourth being the Final Order of the Court of July 28 handed by the original 5-member panel.

There being no precedent in the judicial history of Pakistan, or, for that matter, anywhere else in the world, of there being four final judgments in one case, it is appropriate that this apparently irreconcilable state of affairs may very graciously be resolved, and the inherent anomalies removed, by reviewing the Final Order of the Court of July 28, the lawyer argued.

The petition submitted that so far as the proceedings conducted by the 3-member bench subsequent to April 20 Order are concerned, these too stand vitiated as they appear on the face of it to have been conducted by the three judges’ panel that had not retained any such jurisdiction with it as per the terms of this Order. On the face of the record, the April 20 Order unambiguously indicates that, but for the nomination of the Joint Investigation Team (JIT) members by the three judges, who passed the majority decision, the entire earlier 5-member panel had become functus officio after the pronouncement of this Order; clearly envisaged the constitution of two benches, one for purposes of receiving the JIT report and passing appropriate orders in terms of the Order, and the other a special bench for the purpose of implementing the majority verdict of July 20 in so far as it related to the probe to be conducted by the JIT and not the continuation of the earlier 5-member bench or three judges who rendered the majority decision on April 20.

The petition said that as a matter of fact, after the passing and as per the terms of the April 20 Order, two separate and independent benches should have been constituted: one to implement this Order and the second for receipt of the JIT report once the investigation had been completed and to pass appropriate orders as well as consider the matter of disqualification of Nawaz Sharif.

The lawyer wrote that this was essential also in order to protect Nawaz Sharif’s right to fair trial, as it is not permissible nor appropriate to meet the ends of justice and fair play for the same bench to oversee an investigation, and thereafter to pass a judicial verdict on the basis of this very probe. In the instant case, the bench that passed the judicial verdict against him was not only the same that was implementing its own judgment with respect to investigation into the allegations against him, this very bench had nominated/selected the respective JIT members, and, as such, the decision rendered by these justices on the issue of an investigation carried out under their oversight and that too by the JIT members who had been nominated and/or approved by the bench themselves is violation of his fundamental right to fair trial, and, as such, the Final Order of the Court/judgment of July 28 are liable to be recalled in review.

The petition said that in any case, the April 20 judgment delivered by three judges only forms a prelude to the decision of July 28, but no part of the April 20 verdict can be read as part and parcel of the July 28 Final Order of the Court/judgment.

It said that even if it be presumed, though without conceding, that the 3-member or 5-member bench which had earlier dealt with the matter had the jurisdiction to pass further orders in these petitions, this could only be done after completion of investigation by and receipt of final report of the JIT, while from the record it is evident that the JIT neither completed its probe nor submitted a report which can even remotely be considered to be final. The July 28 Final Order of the Court/judgment, therefore, are not in consonance with the April 20 Order of the Court on this ground as well, and are liable to be reviewed as such.

Khawaja Haris further stressed that the request made by the five-member bench to the Chief Justice of Pakistan for nominating a judge to supervise and monitor implementation of Final Order of the Court/Judgment sought to be reviewed “and oversee the proceedings conducted by NAB and the Accountability Court” in the matters pertaining to the investigation and trial of the references directed in Final Order of the Court/Judgment to be filed against Nawaz Sharif and others is tantamount to arrogating to the apex court the role of the complainant, investigator, prosecutor, judge, jury and the Court of ultimate Appeal all at once, which is repugnant to the very basis of the criminal justice system in Pakistan.

The lawyer submitted that a brazen violation of Nawaz Sharif and his family members’ fundamental right to fair trial as embodied in Article 10A, the principle of due process as guaranteed by Article 4, the fundamental right of equality as enshrined in Article 25, the fundamental right to life as secured by Article 9, the fundamental right to dignity of man as guaranteed by Article 14, and even the constitutional norm of separation of powers as sanctified by the Supreme Court’s innumerable judgments, and, as such, this request is manifestly per in curiam (decided without reference to a statutory provision or earlier judgment which would have been relevant) and needs to be expunged from the Final Order of the Court/Judgment.