ISLAMABAD - Legal experts have ruled out any prospect of relief to former prime minister Nawaz Sharif in the Panama Papers case through a ‘likely’ presidential reference to Supreme Court, seeking to review the verdict.

A member of the Sharif family’s legal team told The Nation that the ruling party is considering requesting the president to seek the opinion of the Supreme Court’s larger bench on two judgments on tax matters, which according to them, was contradictory.

Article 186 of the Constitution says that the president may refer a question of law involving public importance to the Supreme Court to seek its opinion and consideration.

Legal experts, however, say that the Panama Papers verdict was not about (income) tax and rather it was about unexplained assets.

On the one hand, the Pakistan Muslim League-Nawaz, as a political party, is exhibiting its ‘distrust’ of the Supreme Court by not challenging the March 21 verdict on Election Act 2017, which barred Nawaz Sharif to head his party, and on the other hand, the party is considering sending a presidential reference, seeking relief to the party’s ‘supreme leader’.

Legal experts believe that the basic aim of filing the presidential reference was to create a rift among the judges.

According to the legal experts, in one of the verdicts (related tax), some judges have relied on one definition and in the Panama Papers verdict, the same judges have concurred with the other judge(s) on the definition of word(s) related to tax/assets while relying on a Black’s Law dictionary — that disqualified the former prime minister as a member of the National Assembly. The PML-N is banking on the observations of the judges in the two identical cases to file the review reference, according to sources in the PML-N.

While deciding a disagreement between the Securities and Exchange Commission of Pakistan and State Bank of Pakistan on October 27, 2017, a three-judge Supreme Court bench headed by Justice Ejaz Afzal Khan and comprising Justice Ijazul Ahsan and Justice Qazi Faez Isa declared: “the primary duty of a court of law is to find the natural meaning of the words used in the context in which they occur, that context including any other phrases in the Act which may throw light upon the sense in which the Act used the words in dispute”.

The 24-page judgment of October 24, 2017, was authored by Justice Qazi Faez Isa and the other two judges Justice Ejaz Afzal Khan and Justice Ijazul Ahsan, who were also members of a five-judge larger bench of the Panama Papers case, have concurred with the (minority) judgment.  

The same judgment further says: “The reference to dictionaries by the learned judges, without first examining the statutory provision and its context, was inappropriate. Such an approach may result in incorporating into the legislation something which it did not contain, and what the legislature did not intend”.

“Dictionaries provide the entire spectrum of meaning of words, most of which with reference to the words in the ordinance would be irrelevant. Ordinary English language dictionaries may also not accurately give the meaning of the word(s) used with regard to company law matters. The principles of statutory interpretation were also not kept under consideration before interpreting the ordinance,” the judgment further says. 

The judgment reads that “judges should not create liability by ‘interpretative techniques’, further quoting Lord Diplock. It endangers continued public confidence in the political impartiality of the judiciary which is essential to the continuance of the rule of law, if judges, under the guise of interpretation, provide their own preferred amendments to statutes which experience of their operation has shown to have had consequences that members of the court before whom the matter comes consider to be injurious to the public interest”.

“Nor should judges try to rectify what they may assume should have been incorporated in a statute,” the judgment says.

Justice Khan and Justice Ahsan in the July 28 Panama Papers judgment, as members of the five-judge bench, had relied on dictionary definitions of assets and declared that Nawaz Sharif was dishonest as he had not declared the receivable salary in his declaration, and subsequently disqualified him as a member of the National Assembly.

“The word asset has not been defined in the Representation of the Peoples Act (ROPA) 1976, therefore, its ordinary meaning has to be considered for the purpose of this case,” the Panama bench observed and relied on the Black’s Law Dictionary as well as business dictionaries to substantiate the point in disqualifying the former prime minister.

Law expert Faisal Chaudhry said that the (SBP versus SECP) case was insignificant and every case had to be decided on its own merit and the income tax laws could not be applied election laws (concealment of assets in filing nomination papers). He said that the salary point had already been elaborated in the review judgment in the Panama Papers case.

Legal expert Babar Awan said that Article 186 of the Constitution is an advisory jurisdiction and if there is some ambiguity, then the court in some other case could distinguish the judgment and remove the ambiguity if any. 

 “The other way is the jurisdiction of the Supreme Court under Article 188 of the Constitution, it can resort to for the review of the judgment,” said Advocate Awan.

“In addition to this constitutional mechanism and hierarchy, the president cannot bypass the Council of Common Interest (CII) as the case relates to the federal judiciary and in making any such move, the federating units cannot be kept out,” he said. 

Advocate Shumail Ahmed Butt, who is an expert in tax matters, believes that various tools of interpretation including the use of dictionary meanings are only resorted to when the statute itself is silent.

“In case, a term has been specifically dealt by the statute, which is applicable to a controversy, courts are bound to apply such definition. Going against the literal interpretation of a term so provided in the statute, when it does not lead to any confusion, would render that judgment per incurium (against the law and liable to be ignored),” Shumail said.

He said that the Panama Papers judgment was not related to income tax but unexplained assets.

“The apex court was seized with a case related to a salary which was allegedly never received. Since the election laws are silent on a comprehensive definition of assets especially such a salary, the court could have recourse to tools of interpretation,” he said.

Advocate Azhar Siddique said that the presidential reference relying on the ‘observations’ of a judgment settling the dispute between the SECP and SBP would be a futile exercise as the Panama Papers case had already been decided judicially and the review petition had been dismissed.

Referring to SBP versus SECP judgment, he said that a three-judge bench could not overrule a five-judge bench verdict.

 

 

Nawaz unlikely to

get relief through ‘presidential reference’