INSIGHT AND FORESIGHT

December 12, 2016

PITY THE NATION

Filed under: Uncategorized — sharafs @ 5:49 am

supremecourt

Each man’s death diminishes me,

For I am involved in mankind

Therefore, send not to know

For whom the bell tolls,

It tolls for thee

Johne Donne

Panama Papers scandal is tantamount to a political Buzkhashi in and around the Supreme Court of Pakistan. I call it ‘tossing a carcass’ to evade responsibility, and reluctance to bring corrupt to justice.

The remarks and observations of the honourable judges of the bench become a hot topic outside the court. Irked by the furore their comments generate, the court remarked that both parties are speaking more on media and presenting less proofs in court. But when a case is being contested between the public and individual interests, the responsibility for creating awareness falls directly on the petitioners.  Also unearthing missing links are the function of the state and its organs. This function of acting as investigators and jurists puts an added burden on the apex court.

It is to be seen that petitioners are acting in public interest and not purely for their own individual interest. Relentless pressure by petitioners has led to admission of ownership of properties by the respondents. Once such a petition is entertained and heard as a matter of public importance, the court along with the relevant investigative authorities are under a legal obligation to switch into an inquisitorial or enquiring mode respectively as per the recent judicial precedents or law and more so under the present circumstances wherein raising of important legal questions has resulted in admission by the respondents (i.e. the family of Prime Minister Nawaz Sharif) that ownership of properties worth billions belong to them and consequent whereupon the burden of proof has already shifted on the respondents. If they continue withholding information, it is to their own peril.

At the same time the petitioners are not equipped with the mandate and tools of a criminal investigation agency which can employ its coercive procedures or processes to carve a trial worthy case for prosecution.  The culpability of Mian Nawaz Sharif’s family is already floating on the face of the record unless they prove that the assets or properties in question have been lawfully acquired through legitimate sources besides also clarifying the contradictions that hitherto exist in the statements made by the Prime Minister and his kith and kin before the Parliament, press and electronic media. Indeed if it deems Pubic Interest to be legitimate, then it also means that this is the test of Supreme Court to put all issues of governance and its laments related to it to the anvil of correction. Surely the Supreme Court has the power to order NAB, FIA, SBP and SECP to file corruption cases against Nawaz family in the event of their failure to justify such huge acquisition of assets which is much beyond their known sources of income. There are links of the past that include the FIA Report submitted by Mr. Rehman Malik and proceedings of NAB in Hudaibiya Paper Mills that need to be consulted.

The Supreme Court once rejected the notion of a Commission in May 2016 with the remarks that in order for a commission to be formed, legislation (ToRs) will first have to be passed by the parliament. Earlier Barrister Zafarullah Khan submitted a wild card challenging the legitimacy of the bench alleging interference in the powers of the Parliament. The Supreme Court dismissed the plea with the observations that the court had already refused to form the commission, adding it was premature and “does not call for exercising court’s jurisdiction under Article 184 (3) at this juncture”. So when the Court has already started to exercise its powers under Articles 184 and 187 of the Constitution, then, why is it now showing a tilt towards the formation of a commission; and why is it seemingly of the view that Prime Minister Nawaz Sharif may present himself before a commission?

Those who dealt with Gilani case and are familiar with the facts thereof also know that Gilani’s contempt of court conviction was commented as ‘poetry rather than on any evidence of actual contempt of any court order’. As maintained by Aitezaz Ahsan the defendant had never been directly ordered and was yet punished. Even the case of hanging of Zulfiqar Ali Bhutto has become an albatross for the Supreme Court. If innocent Prime Ministers were convicted in the past then why not a guilty Prime Minister who has candidly admitted that the ownership of vast assets belong to the Sharif Family.

Finally, the apex court has postponed its constitutional responsibility till January 2017 when a new Chief Justice will be in office to constitute a new bench. The new Chief Justice will also henceforth be on trial since justice is not only to be done but it also should be seen to be done. If news and flashes in social media are correct, then the new Chief Justice should take leave from the case and allow the senior judge to head the new bench.

Legal judgements based on the high pedestal of poetry also become an albatross around the neck of jurists. One such example is quoting the poetry of Khalil Gibran and John Donne by Justice Asif Saeed Khan Khosa, followed by his own poetry with an apology to Khalil Gibran in his remarks on Contempt Proceedings against Syed Yousaf Raza Gillani, the Prime Minister of Pakistan on 26 April 2012.

Pity the nation that achieves nationhood in the name of a religion

but pays little heed to truth, righteousness and accountability

which are the essence of every religion.

Pity the nation that proclaims democracy as its polity

but restricts it to queuing up for casting of ballots only

and discourages democratic values.

Pity the nation that adopts a Constitution

but allows political interests to outweigh constitutional diktat.

Pity the nation that demands justice for all

but is agitated when justice hurts its political loyalty.

Pity the nation that elects a leader as a redeemer

but expects him to bend every law to favour his benefactors.

Pakistan is a Nation-State. Should we pity the Nation comprising its people whose public interests are captive or the state that comprises the Judiciary, Parliament and Executive? What lies between the State and Nation is the Bastille Revolution.

Samson Simon Sharaf

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