A judgment to remember?

2017-04-22T22:47:42+05:00 Saad Rasool

The honorable Supreme Court of Pakistan has announced its judgment in the Panama Leaks case, with two honorable judges disqualifying the Prime Minister and the other three ordering further probe, through a JIT. And, in the aftermath, no one is really sure whether to celebrate or lament the order.

Immediately after announcement of the judgment, PML-N spin-machine started to project the court’s judgment as a ‘victory’ for the PM. Through a misreading and misinterpretation of the honorable Court’s judgment, members of the Cabinet proclaimed that the court had “rejected” the Petitioners’ claims. And without reading the judgment, for some inexplicable reason, PML-N leadership distributed sweets to celebrate their great honor of having been disqualified by (only) two honorable judges.

Let us put the Panama judgment in its proper (legal) context: two honorable judges (both future Chief Justices of Pakistan) have declared that the PM is not ‘Sadiq and Ameen’, under the Constitution. And the remaining three judges, having rejected the PM’s (flimsy) defence, have sent the issue for further investigation, under supervision of the honorable Court. No judge has accepted the PM’s stance. No judge has acquitted the PM. No judge has declared that the Petitions were without merit. And no judge has dismissed the Petitions.

To better understand the issue, a brief overview of the judgment is necessary.

At the very outset, it is important to point out that, while all five honorable members of the bench have penned their individual opinions, the judgments authored by Justice Asif Khosa (in dissent) and Justice Ijaz-ul-Ahsan (in majority) provide the most detailed reasoning, and thus merit careful review.

Justice Khosa’s meticulous judgment, penned in his characteristically prolific style, exhaustively deliberates the multifaceted issues involved in the case. Recognising that the honorable Supreme Court, in exercise of its jurisdiction under Article 184(3) of the Constitution, cannot adjudicate disputed questions of fact, Justice Khosa presents a brilliant rationale for deciding the case: he declares that “it is not the properties in London which is in issue before this Court but what is at issue is [PM’s] honesty for the purposes of a disqualification under Article 62(1)(f) of the Constitution.” And in order to answer this question, Justice Khosa states that “I have decided to keep aside the material produced by the petitioners... and to take into consideration primarily the explanations offered and material supplied by [the PM’s family”. As such, through this brilliant rationale, Justice Khosa sidesteps disputed questions of fact, and “focuses solely on the issue of honesty of [the PM] with reference to the explanations advanced by him and his family.”

Thereafter, Justice Khosa points out the plethora of contradictions and “broken” links in the material produced by the PM and his family, concluding that the PM “economized with the truth”. He observes that “no details of any bank account, any banking transaction or any money trail has been brought on the record” by the PM or his family. In fact, the entire “story” about Qatari investments was “nothing but an afterthought” with “absolutely nothing” on the record to substantiate the same. Thus, Justice Khosa makes the inescapable conclusion that “even a layman [in Pakistan Chowk, Dera Ghazi Khan] can appreciate… that what has been told to the nation, the National Assembly or even this Court about how the relevant properties in London had been acquired was not the truth.” This “unbelievable” story, Justice Khosa concludes, of “oscillating and vacillating explanations”, makes one “wonder where truth and honesty stand in the list of priorities of [the PM]”, has no “credibility”, and thus merits disqualification under Article 62 and 63 of the Constitution.

Surprisingly, Justice Ijaz-ul-Ahsan (and other majority judges) agree with almost all of the factual and legal conclusions arrived at by Justice Khosa and Justice Gulzar. Justice Ahsan points out “patently contradictory statements” of the PM and his family members, and observes that Qatari letters “have not been proved in accordance with law, are ex facie based upon hearsay and not substantiated by any credible material, let alone document(s)/evidence.” He also observes that “it is hard to believe” that 12 million Dirhams exchanged hands “in cash”. And that “no effort has been made to provide even the basic answers” to questions raised against the PM, and “no effort was made, despite questions asked, to explain why two young men, who were studying in London, needed four large independent flats to live in.” In fact, Justice Ahsan says that the (sham) payment spreadsheet, presented by the PM’s lawyers, was an “amateurish exercise in reverse accounting” and thus “bogus”, having “no legal or evidentiary value and we have no hesitation in out rightly rejecting it.”

What, then, stopped Justice Ahsan (and the majority) to take the necessary final step of disqualifying the PM, as Justice Khosa and Justice Gulzar did? It is hard to say. Some say that expediency played a part. Other claim that the bite may have too big for the Court. Some whisper (in secret) that outside considerations – civilian and Khaki – may have played a role. Or maybe the majority wanted to adhere to some unprecedented form of due process, which would never have been followed in the case of Allah Ditta, and which the honorable Supreme Court has itself ignored in many cases in its recent history (e.g. Tauqir Sadiq case, Arsalan Iftikhar Khan case etc.).

In any case, one has to wonder, would the majority have ruled as it did, if the person in question was not Nawaz Sharif?

Regardless, now that the JIT has been formed, with specific TORs, a number of questions arise. Can the JIT be expected to work independently, while investigating the sitting PM? If NAB, FIA and other regulators are not performing their job (as observed in the judgment itself) why have they been included in the JIT? Also, why have intelligence agencies been entrusted with an ‘investigation’? Even so, why has the civilian intelligence agency (IB) not been included in the JIT?

Also, can the PM and his family be allowed to further improve upon their “not believable” story? If so, how will this ‘improvement’ be seen through the lens of law? Do the courts not convict people, every day, when they improve their defence in criminal cases?

Can additional documents or foreign letter be submitted before the JIT, when the same were not given to the court? Did the PM, and his family, not assure the court that “every” documentary evidence, in their possession, has already been placed on the record?

Importantly, per the TOR, the JIT is supposed to investigate issues such as whether the Qatari letters are “a myth or reality”. Can the JIT declare these letters, and their content, to be the truth, even after judges of the Supreme Court have already rejected their veracity? Can the JIT sit in appeal over issues that have already been decided by Justice Asif Khosa and Justice Gulzar Ahmed?

And what will happen in 60 days? Will this probe be concluded, or is this going to become a repeat of the Arsalan Iftikhar or Saleem Shehzad investigations?

Let us make no mistake about what is at stake here: not simply the disqualification of the PM. But, instead, the legitimacy of our constitutional court. People have already lost faith in our civilian criminal justice system, and instead placed faith in Military Courts. If this becomes an inconclusive inquiry, similar questions could be raised about other facets of our justice system.

Already, there are (false?) murmurs of a conspiracy afoot. Many claim that the honorable Supreme Court will not rule against ‘takht-e-Lahore’. That a majority of Punjab judges have (for now) ‘saved’ a Punjabi PM from disqualification. And such narratives are ominous for the honorable Court. Because if the PM is ‘saved’ by the Court, on marginal doubt, when Allah Ditta gets convicted on similar margins, the credibility of our courts may soon be no different than that of the PM himself.

Post-Script: We all owe a debt of gratitude to Justice Asif Khosa and Justice Gulzar Ahmed. Not for any partisan proclivity, but simply for representing that exceptional breed of intrepid judges who are willing to stand up to the murky financial dealing of our entrenched status quo.

 

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