Doctrine of necessity still alive, argues counsel in SC

ISLAMABAD: A counsel argued before the Supreme Court on Thursday that Prime Minister Yousuf Raza Gilani had compromised the independence of judiciary with his reported intention of resolving the issue of Sharif brothers’ disqualification.

Pakistan

Advocate Ahmed Raza Kasuri, the counsel for Khurram Ali Shah, a voter, and Noor Elahi, an independent candidate on whose plea the Lahore High Court had disqualified Nawaz Sharif from contesting a by-election, said that the prime minister’s statements on the issue had created an impression that the doctrine of necessity was still alive and that the judiciary was subservient to the wishes of the executive.

At this, Justice Tassaduq Hussain Jillani, who is heading a five-judge bench hearing the review petition, remarked: ‘The petitioners (Nawaz Sharif and Shahbaz Sharif) are still under lot of burden.’

The bench comprising Justice Nasir-ul-Mulk, Justice Mohammad Moosa K. Leghari, Justice Sheikh Hakim Ali and Justice Ghulam Rabbani was hearing a set of identical review petitions moved by the federal government and the Sharif brothers against their electoral ineligibility.

Deputy Attorney General Agha Tariq Mehmood said the federal government had become a secondary party after the filing of the review petitions with the aggrieved party (Sharif brothers) themselves arguing before the court.

Citing Supreme Court rules, Advocate Qasuri said that review petitions could not be taken as a second appeal and any decision to that effect would open a Pandora’s box and give room to the lower judiciary for corruption.

‘Everybody is looking towards the wisdom of this court. The court should not give confusion but clarity to our successors who will lean heavily on its record books in future. Confusion is always a bad law,’ Mr Qasuri argued.

He wondered whether the Supreme Court could grant the right of review to parties which deliberately avoided joining proceedings on three occasions — before the election appellate tribunal, high court and the Supreme Court.

‘The concession of filing review petitions to the parties which allegedly showed disregard to this court will open floodgates for those who will deliberately avoid proceedings of the courts and wait for some opportune time to surface whenever a favourable government or court is in place,’ Mr Qasuri argued.

At this, Justice Tassaduq Hussain corrected the counsel by asking him to rephrase his contention because the filing of the review petition should not be considered a concession and anybody could file review. ‘Concession will be when the court allows their case,’ he observed.

Advocate Qasuri described the alleged propagation against the judiciary by the Sharif brothers as a dangerous trend to divide the judiciary for personal gains.

‘By-election is a continuation of general elections and a person after having been disqualified in general elections should also be disqualified in by-elections,’ he argued.

Khurram Shah and Noor Ellahi also filed separate applications before the Supreme Court to implead them as a party in the appeal moved by Nawaz Sharif against his conviction in the plane hijacking case. The appeal is pending before the same bench.

Filed under Order 33 Rule 6 of the Supreme Court Rules 1980, the applications said Mr Sharif had moved the appeal after nine years of his conviction handed down by an anti-terrorism court in Karachi.

On Oct 10, 2000, the Sindh High Court had upheld the life sentence awarded to Nawaz Sharif by the anti-terrorism court by turning down a state appeal demanding death sentence for allegedly hijacking a plane carrying former army chief Gen Pervez Musharraf and 198 other passengers.

Mr Sharif did not file an appeal against the decision at that time, saying the judiciary was not independent because the judges had taken oath under the Provisional Constitution Order.

Later, Mr Sharif went to Saudi Arabia, along with his family, on exile after striking a deal with the Musharraf government.

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