everal legal conundrums await Nawaz Sharif, the former prime minister, upon his return to his homeland. These purportedly range from, among other things, ‘wilful disobedience’ of the Lahore High Court’s order; references filed by the National Accountability Bureau post-Panama case and his lifetime disqualification; and the effect of amendments to the Elections Act.

However, before addressing these legal issues in turn, a brief background for context is necessary.

Sharif was ousted from government and disqualified from public office in the Panama case and subsequently convicted of corruption in two cases. While assailing his conviction, he asked for his sentence to be suspended on medical considerations. A division bench of the Lahore High Court in November 2019 accepted his undertaking that he would return to the country as soon as he was well enough and allowed to travel to the United Kingdom on medical considerations.

The first legal challenge upon re-entering Pakistan for Sharif could be potential arrest at the airport upon his arrival.

Despite divergent views on the matter, drenched in political bias, the law on this moot point is fairly straightforward, with a caveat due to its facts. A petition for a protective bail can be moved before a constitutional court, which, in order to accommodate an accused, thereby enabling him to approach the concerned court for a remedy or face the process of the law, allow such requests without touching the merits of the case; however, such requests are for a limited purpose (to approach the concerned court) and fixed duration. The caveat is that Sharif absconding, thereby becoming a ‘fugitive from justice’ loses some rights provided by the law. However, the fugitive rule is not absolute and if Sharif can justify the delay in his return to the country, he may be able to secure protective bail.

Alternatively, the federal government can also remove Sharif’s name from its Exit Control List so that the Federal Investigation Agency does not have to arrest the former premier right away. Therefore, the need for filing a protective bail might not arise.

The next hurdle would be the contempt of court proceedings for the breach of the undertaking given and order passed by the Lahore High Court in 2019. In addition, the bail granted in the Sugar Mills case and suspension of sentences in Al-Azizia case were also based on medical considerations and for a limited duration, which may also constitute ‘wilful flouting’ of the court’s order.

Wilfully flouting or disregarding of an undertaking given to, and recorded by, a court amounts to ‘civil contempt’ punishable with imprisonment of up to six months or a fine of up to Rs 100,000.

There are two ways in which such proceedings arise, in the first instance they can be initiated by the aggrieved person, in this case, the state, so the Office of the Attorney General of Pakistan (AGP) or the court itself. Interestingly, former AGP Khalid Jawed Khan had in January 2022 warned of contempt proceedings, but no proceedings were actually instituted, rather the letter itself directed ‘Shahbaz Sharif to ensure the return of his brother within four weeks, or as and when certified as fit to travel by doctors’.

In both instances, the medical report prepared by Prof Carlo Di Mario, furnished before the court by his lawyers, pertaining to Sharif’s health will play a vital role.

Nawaz Sharif was facing various cases, including the National Accountability Bureau’s (NAB) references, when he decamped from Pakistan. Some of those were dropped after the NAB Ordinance was amended in 2022. However, the vires of those amendments were assailed before the Supreme Court and on September 15, it annulled the amendments with a direction for all the dropped cases to be reinstated.

In the Panama case, Sharif was disqualified from holding public office under Article 62(1)(f) read with Article 63 of the Constitution. Notably, at that time, no duration of disqualification was specified; as such, it was understood that the disqualification was perpetual.

In 2023, an amendment was introduced in the Election Act, whereby the term of disqualification in Section 232 of the Election Act was fixed at five years. Pertinently, Sharif’s five year disqualification ended in April of 2022. Therefore, Sharif could stand elections.

Two important questions arise in this regard. Firstly, the implications of the decision in the Supreme Court (Practice and Procedure) Act; secondly, what prevails, decisions of the Supreme Court or enactments of the Legislature?

Generally, the courts have always held that substantive changes in laws are to be prospectively applied and must not alter accrued rights, and parties are to be governed by the law in effect when the action began unless otherwise provided. Considering this, in the verdict to the challenge to the Practice and Procedure Act, the Supreme Court has declared retrospective appeal to be ultra vires. Consequently, neither can Sharif file an appeal against his disqualification, and because, under the doctrine of Res Judicata, the verdict of the Panama case has attained finality, nor can he run for office.

However, there is a direct conflict between a judgement of the Supreme Court and an act of Parliament, begging the question, which prevails?

Simply put, the Legislature has in the past overruled per se the decision of the Supreme Court in the Al-Samrez case through an amendment in the Customs Act. This act of the Legislature was later abided by the Supreme Court and the precedent of Al-Samrez was buried.

Whether a similar challenge is brought before the apex court or Sharif is acquitted in the NAB references, which enables him to run for office again, remains to be seen.

Irrespective of the outcome, Sharif and his legal team will have their hands full, whenever he returns to Pakistan.

The writer is an experienced criminal lawyer. He can be reached at Adv.ChAmadTahir@gmail.com. His X handle: @kIMkLOz_4