The Supreme Court’s dealing with the Panama Papers has run up against procedural issues. First comes the retirement at the end of the month of the head of the bench, none other than the Chief Justice of Pakistan, Mr Justice Anwar Zaheer Jamali. At the last hearing of the case, it was announced that the case would be reheard, not treated as partly heard. Then there is the issue of a court commission.
That means the re-opening of the question of a commission, which had apparently been settled in the sense that one of the parties, the PTI, had strongly opposed it, to the extent of threatening to boycott its proceedings if it was set up. This is not a judicial commission set up by the government, but one set up by the Supreme Court itself, meant to investigate a matter and report back to the Court, which would then proceed on its findings as of fact.
The Court felt the need for a Commission because the evidence submitted to the Court required testing. However, one reason for the PTI’s opposition was that the official investigating agencies the Commission would rely on, like the FIA or NAB, were under the control of the federal government, which meant the very person who was being investigated, the Prime Minister. Though it was left unsaid, the only alternative to these agencies would be for the Court to set up an agency of its own, in which officials were not deputed by the federal government, but whose recruitment was under the Court’s control.
The PTI left it to the Prime Minister and his children to agree to a commission, indeed to leave it to the Court to decide on whether a commission is needed or not. The alternative to a commission is the Court to proceed to a decision on the evidence presented to it, without any further examination of the evidence beyond what it might carry out in succeeding hearings.
The Court seems to have come up against the same obstacle the PTI has, the finding of an organisation both capable of carrying out the investigation, and independent of the person being investigated. The PTI solution is for the Prime Minister to resign. That too will probably not suffice, for the new Prime Minister will know only too well that the party’s prime asset in coming elections will not be him, but Mian Nawaz. As was seen in Mian Nawaz’s absence ill in London earlier in the year, the government can be run by someone without any official position. With Mian Nawaz an ordinary MNA, will bureaucrats stop listening to him? Then the only solution would be a fresh election. As it is, the next election is due in mid-2018, September if this Assembly goes to term.
The political parties have to make a political calculation. The PML(N) would like to have the elections held before a decision is reached, as it would point to the election result (presuming it wins) as vindication. On the other hand, the PTI would want an earlier decision. In a best-case scenario, it would mean an election without Mian Nawaz, disqualified even from candidacy for the National Assembly. This would leave the field open for the PTI and the PPP. Whatever the decision, it could lead to an earlier dissolution, which the PTI would like best.
The PTI does not just have the electoral calculation to make. It is dangerously near a position where it will have to declare opposition to the Supreme Court. That it does not respect the Supreme Court blindly is shown by its reaction to the electoral rigging issue. It had demanded a Supreme Court commission on the 2013 election. It got one, but not the result it wanted, which was that the election was fixed so as to deprive the PTI of victory, and to throw the election to the PML(N). The Supreme Court did not comply, repeatedly demanding evidence of rigging, and apparently not accepting party leader Imran Khan’s say- so. It did find that there had been irregularities, but not in favour of any party, or in any organised manner. The PTI did not reject the finding, but more or less ignored it. PTI cadres, even leaders, still believe that the 2013 poll was rigged, and they would have won a fair poll. The PTI has not taken part the parliamentary body on electoral reform, and prevented it from finalising recommendations, something inevitable considering the lack of enthusiasm for the task among the other parties.
It was during the sit-in against the electoral system that Imran Khan formulated the party’s theory that Mian Nawaz had won all the country’s institutions to his side, which was how his party had won the 2013 election. That theory included the Supreme Court. At the same time, the PTI expressed confidence in the Supreme Court and the country’s judiciary. This leads to the situation where the PTI feels free to seek judicial remedies for its grievances, but also to criticise all institutions, not just for being wrong, but for being bought tools of Mian Nawaz, if their decisions do not suit it.
The Supreme Court did not take suo motu notice of the Panama Papers, but has become seized of the matter because of a petition by the PTI. However, if the Court does not give a verdict that accords with the PTI view of the matter, it should not be viewed with suspicion. It does not mean that Mian Nawaz and his children are innocent of wrongdoing. It merely means the PTI was unable to prove their guilt. In short, that they got away with it. It is then that the PTI will have to turn to the bar of public opinion, and win the next election. It is part of the electoral process that people with charges against them, but no convictions, have been elected. While people might be familiar with the examples of Mian Nawaz and Asif Zardari, even in the USA, the example of Hillary Clinton was instructive. She has not been convicted of any crime by any court, or even prosecuted, but she was thought by enough people to have handled her emails as Secretary of State improperly to have lost the recent election. Of course, that was not the only factor behind her loss, but it did count. In that respect, the PTI has actually done a good job, of portraying Mian Nawaz and his children as corrupt looters. In the coming election, they and the PML(N) will have to combat that impression, as well as deal with the questions that arise out of the stewardship of the federal and Punjab governments.
The incoming CJP, Mr Justice Saqib Nisar, has a tough task ahead of him in handling this case. He must focus on bringing the case to as swift a conclusion as possible, and ensuring that justice is done. The politics of the case will unfold itself at the next election. It should not be forgotten that even if the PTI wins this case, ensures Mian Nawaz’s ouster and prevents him from contesting the next election, that does not open the way for Imran Khan, but brings about a contest between Bilawal Bhutto Zardari and a Nawaz nominee. That nominee may later find he has to leave the party, as Mian Azhar and Javed Hashmi did, but for the time being, will serve to exclude the PTI from the power it so desperately seeks.