The Panamagate scandal has utterly exposed the miserable and rather dilapidated state of the accountability regime in Pakistan. Regretfully, no accountability or investigating agency in the country bothered to seriously look into this high-profile scam involving more than four hundred Pakistanis. In November last year, the Supreme Court of Pakistan eventually took up the case as the politicos had apparently failed to resolve this controversy both inside and outside Parliament. So in the absence of any viable and workable alternative legal apparatus to fix this riddle, the apex court conveniently chose to evolve its own peculiar accountability plan to answer the so-called Panama question.

For the first time in our judicial history, the highest constitutional court is hearing a complex case of alleged corruption against the chief executive of the country while exercising its extra-ordinary jurisdiction under Article 184(3) of the Constitution. Similarly, the apex court is also thoroughly scrutinising the personal property of PTI Chairman Imran Khan under the same constitutional provisions. These cases have given rise to a novel but peculiar legal modus operandi for summarily carrying out accountability against the politicos. This form of accountability hardly bothers about the legal formalities and strict judicial principles. Comprising individuals from various investigative, regulatory and intelligence agencies, a pro-active Joint Investigation Team (JIT) is the most prominent feature of the ‘Panama accountability’.

PML-N hawks are now calling the Panama case proceedings a ‘judicial coup’ after smelling a conspiracy against their elected government. Ironically, the PML-N government itself facilitated the superior judiciary to stage this coup by voluntarily allowing it to hear this case. Now their objections as to the jurisdiction and modus operandi adopted by the apex court to conclude this case are barely relevant. Therefore, the troubled ruling party should focus on the damage control rather than raising flimsy legal objections over this case.

The Panama case is being widely viewed as a precursor to an extensive but rigorous accountability drive in Pakistan. At present, the heads of the country’s two largest political parties are being scrutinised by the apex court. These proceedings may trigger a domino effect in the country, giving rise to an across-the-board accountability process. Moreover, the Panama case is going to set another important judicial precedent whereby an individual could seek judicial accountability against politicians and parliamentarians by simply filing a constitutional petition at the apex court.

Demands for similar judicial scrutiny, accompanied by a proactive multi-agency probe, against other politicians in the country are now gaining momentum. Recently, PML-Q leader Chaudhry Pervaiz Elahi also demanded constitution of a JIT to probe allegations of financial corruption and mismanagement against CM Punjab Shehbaz Sharif regarding as many as eight mega projects of the Punjab government.

The first and foremost thing about ‘Panama accountability’ has been the legal question of whether or not the apex court is justified to take up and decide a case involving multiple corruption charges against a public office holder while exercising its original jurisdiction under Article 184(3) of the Constitution. Does failure by an agency like NAB to perform its legal duty really confer jurisdiction on the apex court to perform that very duty? Should the apex court not precisely determine the question of its jurisdiction before formally taking up the case if a party does not raise any objection regarding its maintainability? Should the apex court revisit the so-called Iftikhar Chaudhry Doctrine whereby parliamentarians have been disqualified under Article 62 and 63 of the Constitution? Is the apex court not going to resurrect the infamous ‘doctrine of necessity’ in the name ‘rule of ‘law’ by arbitrarily scrutinising the highest public office holder in the country? And has the apex court not compromised constitutional provisions regarding a fair trial and due process while doing so? Indeed, the apex court should not ignore these crucial questions while deciding Panama and other similar cases.

Probably to establish the SC’s impartiality, a bench has also taken up a case against IK upon a tit-for-tat petition filed by a PML-N activist. Apparently, this case only aims at diverting public attention away from the Panama case by implicating IK in similar fashion. In fact, the nature of this case hardly warrants invoking the extra-ordinary constitutional jurisdiction of the apex court. For the apex court to take up a case under Article 184(3) of the Constitution, there should certainty be a prima facie case of corruption against an individual. In fact, there was no such case against IK regarding the money laundering. Nor has he been in a position to do so in the capacity of a public office holder. At the most, he can only be probed to ascertain any unjustifiable or inexplicable surge in his private property, or any mis-declaration made by him in this context, since his party came into power in KP after the 2013 General Elections. There is no point in going beyond this period to ask him to explain the money trail for his London flat purchased by him in early 1980’s.

Besides seeking disqualification of PM Nawaz Sharif under Article 62 and 63 of the Constitution, PTI’s petition in Panama case contains allegations against NS of acquiring assets beyond his known means, which essentially revolves around Section 9(a)(v) of the National Accountability Ordinance,1999. Accordingly, the SC bench shifted the burden of providing the money trail for luxurious London apartments to the respondents once it was proven that they owned these apartments. Later, the Panama JIT recommended filing a NAB reference against the Sharif family. Moreover, while considering the JIT report last week, the 3-member SC bench also hinted at sending this case to a criminal trial court. This action would provide a respite to NS. Firstly, the prosecution will have to establish a link between NS and offshore assets. Similarly, the accused persons would also be able to escape through ‘Voluntary Return’ and ‘Plea Bargain’ provisions provided under Section 25 of the NAB Ordinance. So they, at least, would manage to stay away from the Adiala Jail, quite contrary to IK’s overriding desire.

In reality, carrying out accountability has been nobody’s cup of tea in the country. In KP, PTI’s provincial government instantly trimmed the wings of the Ehtesab Commission as soon as it tried to assert itself. In Punjab, when some NAB officials tried to probe allegations of corruption and irregularities against the provincial government, they were severely warned and bashed by the Prime Minster. In Sindh, the PPP government has unilaterally repealed the NAB Ordinance to replace NAB with a subservient provincial agency, the Anti-Corruption Establishment.

During the last four years, the PML-N government didn’t sincerely try to improve the institutional capacity of the NAB, or otherwise make it an independent entity. Similarly, PTI, a party known for making a tempest in a teapot all the time, did not make any strong demand to the federal government to introduce any efficient accountability regime. PTI’s current fixation with Panama accountability is understandable. This accountability drive will certainly provide it an opportunity to enter the corridors of power once NS is disqualified by the Supreme Court.

In all probability, no politician in the country could face or otherwise survive a probe by a Panama-like JIT. Therefore, the Superior Courts should refrain from the bare reading and arbitrary application of Article 62 and 63 of the Constitution to disqualify the Parliamentarians. This practice won’t help curb corruption in real terms. Nor will it help ‘purify’ democracy in the country. Instead of supporting selective application of the instrument of accountability , there should be some serious and sincere attempts to improve the state and capacity of accountability institutions after introducing a comprehensive anti-graft regime in the country.

The writer is a lawyer and columnist based in Lahore.

mohsinraza.malik@ymail.com

@MohsinRazaMalik