‘Reserved judgments’ have a varied history in the dispensation of justice in the legal systems of the world. A ‘reserved judgment’ has general legal connotations in the world particular ones in ‘political’ Pakistan. Such judgments may be equated with a double-edged sword in Pakistan, especially in certain peculiar cases involving political issues or in cases where the counsel, parties, a certain class of people or even the bar itself comes in direct conflict with the judge or the bench. In certain cases, reserved judgments most often come up with the most expected results, maybe adverse, to which parties are already mindful of and have made up their minds to meet the situation. Whereas, in certain other cases, they come up with the most unexpected results, especially where the judges often give oral observations in the course of hearing of the case. Such remarks are often taken by the parties as a part of judgment and hence are likely to mislead them in their conclusion, resulting in sheer disappointment and frustration.

Students of law, however, are always well aware of the legal maxim that ‘the judge speaks only through his orders’ which means written orders and not spoken. The courts give hearings to the parties and reserve judgments in routine all over the world whereas in Pakistan, the courts generally opt to pronounce their judgments then and there, even in certain important cases of murder and references on a short hearing. Admittedly, the judges in such cases may quickly grasp the case based on their capacity to reach a conclusion but a wise segment of judges always opt to reserve judgments instead of pronouncing them then and there to peruse and analyse the evidence produced before them during the hearing and gauge the application of law and due procedure peacefully. This is especially true in cases involving politico-judicial sensitivities as in this instant; the Panama case. Thus, judges reserve judgments to seek more advice from the record and law on the principle of ‘advise me more’ to reach a fair and logical conclusion to the case.

What the honourable judges will decide in the case can only be explained by them. However, what legal options the court could opt for in the case can fairly be expounded upon. The question of disqualification or otherwise, would, perhaps, be a matter of great concern for the judges in the immediate Panama case. The honourable members of the implementation bench may first ponder over whether they should decide the matter of disqualification of the Prime Minister or not. In the first instance, any or all members of this implementation bench may endorse ‘the disqualification verdict’ already passed by the two honourable judges of the five member bench vide judgment dated May 20, 2017. One segment of legal experts believes that the court may pass an order including disqualification in the interest of justice under Article 184(3) of the Constitution. However, another segment of experts strongly believes that the Prime Minister may not be declared disqualified until he is convicted by a competent court of law as it was dispensed in the case of former Prime Minister, Yousaf Raza Gillani who was first convicted of being guilty of contempt of the Supreme Court by not implementing the orders of the court to write a letter to Swiss authorities against Mr Asif Ali Zardari, the then President and was sentenced to a confinement till the rising of the court. Thus, conviction and sentence provided basis for the disqualification of the Prime Minister. In the case in hand, the prerequisite of conviction by any competent court, which may be a National Accountability Court on account of corruption charges or the Supreme Court itself on account of perjury as well as misdeclaration under Article 62 and 63 of the Constitution. Even for perjury and at length for misdeclaration, the due process of a show cause notice, framing of charges, right of defence to plead innocence before the court and cross-examinations would be prerequisites to pass any verdict to declare him guilty of perjury or misdeclaration or otherwise innocent. Furthermore, a question also arises regarding whether the court would opt to decide the issue of misdeclaration by itself or refer the same to the Election Commission of Pakistan, the competent forum to adjudicate upon such issues in case of public representatives like the Prime Minister, especially when the Prime Minister, though appeared before the JIT to record his statement in line with Section 161 of the Cr PC which is not admissible in the court, but has not been called for or made to depose his statement before the Supreme Court with reference to the meaning of misdeclaration or perjury, thus, perhaps, barring the very jurisdiction of the court until it is provided.

Interestingly, there are two extreme swings in the pendulum of this case. On one extreme, the circumstances of the case and the balance of convenience, prima facie, seem to lie against the Sharif family including the Prime Minister. Whereas, on the other extreme, it , prima facie, seems to be lying at least in favour of the Prime Minister, if not in favour of other members of the Sharif family, especially in view of application of law and due process to implicate him while connecting him with the commission of alleged offence beyond any iota of doubt by way of proving that the unjustified assets are firstly linked with corrupt money or even corrupt practices committed by the Sharifs other than Prime Minter and secondly committed by the Prime Minister himself as a public office holder.

Undoubtedly, this is a special case involving politico-judicial questions of extreme importance directly linked to the stakes of ruling as well as opposition political elites vis-à-vis the common man or a common public servant who might have been arrested so far in similar circumstances. Our crippled institutions are not capable to bear such burdens as are being posed by the overspills of the Panama case. Our legal system seems handicapped in exercise of even its due powers both against the strong and the weak equally. The institutional hunchback becomes rather more conspicuous when it is pushed hard by the strong to take extra care in the application of laws and due process against them and where the meaning of ‘beyond any iota of doubt,’ and that ‘the accused is a favourite child of law’ and ‘everything would be done in accordance with law’ assume special connotations. However, as every cloud has a silver lining, the positive outcome of such cases is that the crispy system is truly reminded of its obligations due to both the strong and weak.

Summarily, what options the court has in the instant case are firstly, that it could have remanded the case to the JIT – which seems rarely possible in the instant case – to address the genuine concerns of the accused raising the points of faulty or unaddressed investigation for further probe which now may be referred to competent fora, NAB and the National Accountability Court. Secondly, the honourable implementation bench may pass any order in the interest of justice and disqualify the Prime Minister on the basis of misdeclarations and may not disqualify if the case relies upon prerequisites of conviction and due process thereof to disqualify a person. Thirdly, which seems most likely, the court may refer the case to the NAB to initiate the proceedings against the Sharif family including Prime Minister in accordance with law. Fourthly, the court may direct NAB to initiate proceedings at one hand and simultaneously recommend the Chief Justice to constitute a larger bench to decide the question of disqualification or to refer it to Election Commission to proceed in the matter. Not the least, it may refer the case to NAB and direct the Prime Minister to face proceedings there but step down in the meanwhile without disqualification.

The writer is a socio-political analyst.