INSIGHT AND FORESIGHT

February 25, 2017

The Panama Pyre

Filed under: Uncategorized — sharafs @ 5:53 am

 

The hearings of a Public Interest Litigation (PIL) on Panama by a bench of the Supreme Court of Pakistan have concluded and the judgment reserved for future. Litigations filed by Pakistan Tehrik e Insaf (PTI), Jamaat e Islami, Watan Party and Sheikh Rasheed Ahmad were earlier dismissed. The Registrar of the Supreme Court had ruled that these petitions were frivolous for pecuniary gain but was overruled by the Chief Justice who constituted a bench that dissolved on his retirement and was again reconstituted with Justice Asif Khosa heading it.

What is important is that the Supreme Court ‘in principal’ accepted the petitions in the spirit of public interest in as much it exercises the jurisdiction of suo moto, (representative of people and strengthening democracy in public interest). It took on the onerous task of ascertaining the wrongs done to the fundamental rights and interests of the people of Pakistan. In the days of Justice Retired Iftikhar Chaudary, the Supreme Court has invoked this jurisdiction repeatedly.

The proceedings were never about the petitioners versus PML-N. Though the media did try reflecting debates as adversarial they were in fact inquisitorial with the Supreme Court Bench acting as a surrogate of public interest. The questions on money trails were inquisitorial in nature and the respondents exercised evasion. As PILs the world over imply, it was the bench ascertaining facts with assistance of litigants who represented the people of Pakistan. It was in this spirit that Imran Khan, Chairman of PTI invoked Article 184 (3) of the Constitution of Pakistan and reminding the court that his petition was justified in advocating the interests of the people.

In such cases as provided in Article 184 (3) of the Constitution of Pakistan, the inquisitorial and judgment writ of the Supreme Court extends beyond what exists in judicial precedence. It is for these reasons that while the petitions provided leads to the violations of public interest, the onus of ascertaining the truth and facts fell on the Supreme Court. For this reason, many jurists in Pakistan commented that the ‘Supreme Court was on trial’. The petitioners repeatedly reminded the bench that they were not an investigating agency. To invoke the inquisitorial jurisdiction of the Supreme Court and enable it to question investigative agencies and lower courts, PTI had prayed for the following actions by the court: That Mian Nawaz Sharif, Captain Retired Safdar and Ishaq Dar be declared to be disqualified to be Members of the National Assembly. There should be a direct recovery of looted/laundered money along with properties purchased through British Virgin Island Companies and companies in other safe havens. A direction to Chairman NAB must be given to discharge his obligations under S.18 read with S.9 of the National Accountability Ordinance 1999 and complete investigation in mega corruption cases pending for the last fifteen years. The Secretary Interior was to be directed to take steps for placement of the name of Mian Nawaz Sharif and his family members named in Panama leaks on the Exit Control List. Secretary Law and Chairman NAB must be ordered to initiate claims on behalf of Government of Pakistan for recovery of the properties in question. The FBR is to be directed to probe and minutely scrutinise the tax returns and assets declarations of the respondent and the entire Sharif family. Any other relief, direction or order deemed just and proper may also be afforded, issued and given.

PILs and suo motos have a historical precedence and past decisions of the Supreme Court have an effect of law. These are always inquisitorial and non-adversarial.  Judicial activism and what some may call the power of the Suo Moto emerged in Pakistan post-1985. According to Rafay Alam, “the creation and development of the PIL jurisdiction can also be seen as a manifestation of the Islamic and democratic ideals enshrined therein… the non-adversarial nature of PIL proceedings often result in consensus which appear similar to the principle of Ijtma in Islamic law…PIL jurisdiction is one of the few places citizens can challenge their elected representatives and the institutions they operate without recourse to the polls. With some Islamic scholars arguing that the use of Ijtma makes Islamic law compatible with Democracy, the link between PIL and Islamic and democratic principles is becoming difficult to ignore.”

It appears that the court hearing the Panama PIL forayed into unchartered territory and therefore learnt as it proceeded. The case itself that spans irregularities from 1992 to this day, requires unprecedented inquest. This is the reason why PTI had made NAB and FBR as respondents and also included the proviso of ‘deemed just and proper’. The challenges for the honourable judges were reflected in the exchange of dialogues during the proceedings.

But the first prayer of PTI had no ambiguity. It related to Sadiq and Ameen about which the court had set precedence in the past like disqualification of elected representatives failing Articles 62-63 of the Constitution of Pakistan. In the case of the disqualification of Yusuf Raza Gilani, the Supreme Court itself had disqualified the Prime Minister after conviction rather than refer it to the Election Commission of Pakistan. The litigants felt that based on evidence, past precedence and the evasive attitude of the respondents in the court, the bench in a short order could disqualify Mian Nawaz Sharif under Articles 62-63 of the Constitution of Pakistan.

Other prayers of PTI will take time to address. The respondents, cognisant of dire consequences, deliberately kept the issue of money trails ambivalent. Stopping the buck at 2006 and Qatari letters were used to confuse the court. The crucial links to untangle the knot and discover the trails back to 1992 lay in the Economic Reforms Act of 1992, Hudaibya Paper Mills and Ishaq Dar’s confessional statement on money laundering. These cases were not probed enough and governor State Bank of Pakistan never questioned.

The appearance of Chairman NAB in the courts was more for optics. It was the courts and not NAB that had shut doors on the Hudaibya Paper Mill case. In one case, the judge who closed the case is named in Panama papers. The Lahore High Court, while quashing a NAB argument admitted that Nawaz Sharif had nominal shares in the business. Judge Anwar Ahmed of accountability court termed all charges ‘politically motivated’, a remark that was never deliberated. The bench should have investigated these court decisions before admonishing Chairman NAB, who stood his ground with grace.

Another missing link and not probed enough was the Economics Reforms Act 1992 and its relevance to money laundering. These trails are mentioned in detail in FIA report investigated by Rehman Malik. Though the report did find mention in the proceedings, it is available with the bench to determine the relevance with evidence provided by the litigants. While the bench deliberates over the final outcome, it is hoped that State Bank of Pakistan will be asked to furnish crucial financial data from 1992-98. These, combined with the judgments of British Courts will make a water tight case. Indeed, if proved, it will result in convictions and recovery of Pakistani assets. Individuals who abetted in hiding money trails before the bench will all be in the firm grip of the long hand of law.

Given the damage done to Pakistan and its people, the final judgment of the bench could comprise a short order followed by more investigations. During that phase, the courts that ruled in favour of Sharifs, FBR and State Bank of Pakistan will all be under inquest.

In case the prayers of Imran Khan are not addressed, the litigants will always have a right of review. Then a legal team of PTI will raise issues on questions of law (not framed by the bench) leading to more inquests. To assume that Panama Case will be dead after the bench gives its judgment is wrong. To the contrary, the game would have just begun. The Panama Pyre will burn.

Published in Nation. 25-2-17

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