Former Attorney General Irfan Qadir said that the Supreme Court had acted as a supra-legislature in the Panama case and it would not be able to strike down the Election Act amendments. He said that the Election Commission of Pakistan would also not be able to bypass the law.
Speaking in Spotlight with Munizae Jahangir on Tuesday, Irfan Qadir said it was an incorrect perception that onus to provide proof was on people accused by NAB and not on the Bureau.
He added that the initial onus is always on the prosecution and only when it is discharged to an extent by showing disparity between income and assets does it shift to the accused.
Qadir added that this stage was never reached in the Panama Papers case because the initial onus was never discharged.
He said that NAB was the only body that could form a JIT, conduct an investigation and file a reference in the case. However, all this was done in the supervision of the Supreme Court instead.
The lawyer said that the SC cannot ‘import’ a disqualification as it did in Nawaz Sharif’s case by going against the law. He added that the SC cannot rewrite the law by acting as a supra-legislature.
He said that the judges who had disqualified Nawaz either did not know the law or had been carried away by the media noise around the Panama Papers case.
Abid Zuberi said that Article 62(1)(f) had been brought to its present form in the 18th constitutional amendment. He said that the court had to certify someone to be be ‘sadiq and ameen’ under the article.
He added that the court had ruled that as long as the declaration by the court remained valid and the duration of disqualification was not specified by the consitution, the person would remain disqualified.
Saqib Jilani said that he believed amendments to the election law to be a curative legislation which had specified the time of disqualification under 62(1)(f). He said that the legislation was made to mitigate the undue harshness of lifetime disqualification.
He said that he believed that lifetime disqualification was against the fundamental rights under the constitution as well.
Jilani added that suspension of a sentence does not lead to washing away of the stain of conviction as ruled by the Indian Supreme Court.
Qadir said that double jeopardy meant that criminality cannot be attributed twice but things such as disqualification do not fall under it.
He added that while Zuberi was right about that the law has to be interpreted sometimes, reason logic and rationality cannot be ignored completely.
He went on to say that the courts do not have the authority to determine a duration of disqualification when a maximum sentence was specified already.
Qadir said that courts could not be considered bigger than the constitution. He added that in a clash of legisprudence and judisprudence, prudence must prevail and there was no prudence in disqualifying someone for life.
He said that the SC cannot strike down the Election Act as it was an existing law and it cannot be bypassed by the ECP either.
Asked whether the Bhutto reference would open a Pandora’s box, Jilani said that he believed that Pakistan could not move forward as a nation until dark chapters of its history were revisited.
He said that blunders such as the Bhutto trial would be repeated unless historical wrongs are righted.
Legally, he added, that the reference was botha matter of public importance and law.
Qadir said that no Pandora’s box would be opened through the Bhutto reference as no such decision has been made inthe history of the world.
He added that the final verdict of the court was by 4-3 with three judges saying Bhutto should be acquitted. He said that the principle of criminal jurisprudence was that the slightest benefit of doubt should go to the accused.
Zuberi said that while the original decision was by a majority of 4-3, the matter had been dismissed in the review by all seven judges simultaneously.
