Monday, July 31, 2017

Business Recorder Column July 31, 2017

A strange jurisprudence Rashed Rahman The almost one year old saga of the Panama case before the Supreme Court (SC) finally ended with the disqualification of former prime minister Nawaz Sharif on a technicality, not the plethora of charges of corruption, money laundering, obfuscation regarding properties abroad and offshore companies, enjoying wealth beyond known sources of income and being unable to satisfactorily explain the money trail of his and his family’s businesses. The technicality involved not declaring his chairmanship of an offshore company owned by his son and an accrued, but not received, salary thereof. The trajectory of the whole Panama case leaves many questions unanswered and a host of reservations, not the least regarding the jurisprudential precedent set by the SC. The case owed its origins to the Panama leaks, which named many global prominent individuals and families as using offshore companies to hide their wealth stashed abroad. The Sharif family’s names also appeared in the list. Imran Khan’s Pakistan Tehreek-i-Insaaf (PTI) attempted to stage a lockdown of Islamabad in November 2016 soon after the Panama leaks in an attempt to reproduce the 2014 sit-in. Both times the demand was for the resignation of Nawaz Sharif, underlined the second time round by the Panama papers revelations. When the lockdown did not take off, the party decided to approach the SC. Imran Khan, in his inimitable style of shooting from the lip, claimed recently that a sitting judge of the SC advised him to abandon street agitation and file a petition before the SC. The court has yet to take notice of the statement, which could amount to contempt. Similarly, Sheikh Rashid’s allegation that Nawaz Sharif offered billions to the SC members of the bench hearing the Panama case in an attempt to save himself has not been taken up by the apex court. These and similar wild statements, some violating precepts of no comment on matters sub judice, others bordering on contempt of court, have been flying about ever since the case began, without inviting any sanctions on their authors, who belong to both the opposition and the ruling PML-N. This liberal attitude of the SC regarding much inappropriate comment on the case during its pendency is nothing if not unprecedented. The petition moved by Imran Khan was originally rejected by then Chief Justice of Pakistan (CJP) Jamali. But the CJP reversed himself later, after the proposed commission of inquiry was also rejected by him as the 1956 law under which it would be set up was toothless. In between, the government and opposition failed to agree on the terms of reference of such a commission of inquiry even under a modified and strengthened law. CJP Jamali privately expressed his intent to dispose of the petition before he retired, but then failed to do so and left the matter in the lap of his successor. The next CJP Saqib Nisar set up a five-member bench to hear the case. This bench produced a split 3-2 decision in April 2017 whereby the minority found Nawaz Sharif not sadiq and ameen (truthful and honest) and therefore liable to be disqualified under Article 62(1)(f). The other three members of the bench sought instead an investigation into the charges by a Joint Investigation Team (JIT). This JIT suffered from the inherent difficulty of obtaining mutual legal assistance from the relevant countries involved in the matter in the absence of bilateral treaties allowing this course. The hurried (60 days) report submitted to the SC’s three-member implementation bench set up to oversee the JIT’s investigations had many loopholes, not the least being reliance on a Pakistani-owned private law firm in the UK to obtain whatever information could be gleaned regarding the Sharifs’ properties abroad, particularly the four Park Lane apartments in London. All the documents thus obtained reportedly are not verified or attested by competent authorities. If so, they would be inadmissible as evidence. When the implementation bench was ready to deliver its verdict after digesting the findings of the JIT report, the night before, the three-member bench was expanded to five judges, including the two honourable judges of the original bench. This manner of changing the composition of the implementation bench that heard the case and examined the JIT report to include two judges who did not is unprecedented in our jurisprudence, and arguably the civilized world’s. Another problem with the admission of the original petition was that it was filed (and heard) under Article 184(3), which gives the SC the power to hear directly a matter of public importance in which the fundamental rights enshrined in the constitution may have been violated. Not only did the final verdict of the SC ignore the list of charges against the Sharifs in the petition, there was no explanation how anyone’s fundamental rights (including the petitioner’s) had been violated. The judgement disqualifying Nawaz Sharif has ordered the reopening of cases involving the Sharifs by the National Accountability Bureau (NAB). As in the case of the implementation bench monitoring and overseeing the investigation process of the JIT, the verdict recommends to the CJP to nominate a judge of the SC to oversee the NAB investigations and cases in the accountability courts. While both decisions reflect perhaps the SC’s lack of confidence in our investigative and prosecution system, it places the SC in the uncomfortable position of judge, investigator and executioner. This is a radical departure from our traditional jurisprudence, in which subordinate courts are independent of such monitoring by the apex court, which remains the last resort for filing appeals against any verdict by the lower courts. In the case of Article 184(3), no appeal lies beyond the SC, save a review petition before the same bench that pronounced the final verdict. In the present course advocated by the SC, the apex court arguably has gone beyond its traditional mandate and donned the mantle of investigator/prosecutor. With the greatest respect, this is a departure that has grave implications for the future of our jurisprudence. Comment on the case in the mainstream and social media has further muddied an already murky stream. The main protagonists are bogged down in a debate about whether the verdict represents a new dawn of accountability or a political witch-hunt. The former will only become clear if the process of accountability is continued to deal with all the cases of this nature before the SC or Election Commission of Pakistan (ECP). If Articles 62 and 63 continue to provide the bedrock of the court’s view as in the Panama case final verdict, there may be few amongst the political class who would survive such an onslaught. The vacuum of leadership that would be opened up thereby may have grave implications for the running of the country. Whether one subscribes to the urban legend of the establishment being behind the ouster of Nawaz Sharif through the Panama case or not, the vacuum of leadership looming if the Articles 62 and 63 broom sweeps clean the Augean stables of our political class promises more power permeating to the military, which may then be in a position to determine which pliable leader/party best suits its strategy in the light of its security and defence priorities. Without stretching the point therefore, niggling thoughts about a ‘judicial coup’ replacing the virtually ruled out traditional takeovers by the military may be evolving into the new norm. This expansion of judicial power by the SC is, and is bound to in times to come, raise serious concerns at this new turn in our jurisprudence.

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