It is an indisputable reality that edifice of a state and society rests on justice and accountability. Justice means rule of law and equality of all individuals and entities within the state before the law. Accountability means holding all government functionaries and state institutions accountable for their actions, without any distinction or exemption. If we judge the state of affairs in Pakistan on the foregoing touchstone it would not be difficult to conclude safely that unfortunately, these two elements have been missing throughout our seventy years of existence as an independent nation and are instrumental to the quagmire that the country is stuck in at the moment.

The lack of justice and accountability is attributable to our system of governance, a colonial legacy, with inbuilt avenues of injustice, the inability of our politicians to consolidate the gains of independence marked by politics of self-aggrandisement, the shenanigans of the military dictators and the judiciary failing to dispense justice and uphold the sanctity of the constitution.

The major blame goes to the judges who validated the imposition of martial laws instead of resisting the breach of the constitution, relying on the doctrine of necessity to be invented by Justice Muneer, which actually changed the course of history in the country, for which he will continue to receive the curses of the nation till the day of judgment.

The civil-military imbalance that we often hear and is talked about is not a myth but a vibrant unfortunately reality which is the result of the imposition of frequent martial laws. I have great respect for the judiciary because it is the most sanctimonious institution of the state, custodian of the law and the constitution as well as the protector of the fundamental rights of the people. That is what it is supposed to do as per the constitution of Pakistan. But unfortunately its record in this regard is very dismal. While it has hanged an elected Prime Minister and used its power indiscreetly to sack four Prime Ministers, it has lacked the heft to rope in the military dictators who played with the destiny of the nation, mutilated the constitution, bullied and insulted the judiciary. The most recent example of the mighty escaping the purview of law and judiciary remaining a passive onlooker is the fleeing of Musharraf from the country and his defiance of the court orders while he was still in the country charged with violation of Article 6 of the constitution. How can you have justice, rule of law and accountability in a society where the organ of the state charged with responsibility of dispensing justice is so helpless before the praetorian powers but enforces the law as per its discretion on the most vulnerable, the elected representatives of the people?

Panama Leaks is yet another example of judiciary showing its muscle against the vulnerable. We have been hearing judges making tall claims during and after the conclusion of the hearing of the case. Honourable Justice Ejaz Afzal Khan while hearing a case regarding the Orange Line case remarked “Our pronouncement will be a law which will endure for centuries”. Justice Azmat Saeed Khosa said “ we will give a verdict which will be acceptable to all even after 20 years.” That sounds very pleasant to the ears, but the question is, will the verdict in the Panama case be instrumental to dealing a terminal blow to the double standards that we have witnessed in the dispensing of justice in the past and usher in an ear of justice and across the board accountability leading to the rule of law? The answer unfortunately is no. Judges are not law makers and in the present suspicion-laden atmosphere it is hard to say that the verdict will be acceptable by all for a long time to come.

The way the Panama Leaks case has panned out and the developments after the SC verdict that led to the formation of the JIT, have made the case highly politicised and controversial. The Prime Minister and his family and the PML (N) have expressed reservations regarding the inclusion of certain individuals in the JIT and continue to press for the need to address them by the SC. On the other hand the parties in the opposition, particularly the PTI is hell bent to exploit the situation to its advantage. My perception is that in the end the court may also not emerge unscathed from the whole episode in case the verdict is either against the Sharif family or it falls short of the expectations of the opposition parties. In any case it would be subjected to severe criticism.

It is said that justice should not only be done but should also be seen to be done. With the JIT becoming controversial in view of the reservations of the Sharif family and the later developments including the leakage of picture of Hussain Nawaz, allegations of JIT about government departments tampering with the record and the forceful denial by the concerned departments of the allegations, it is feared that justice may not be seen to be done.

It is generally felt that the SC should not have entertained the petition by political parties in the first place, after having refused the request by the Prime Minister for the formation of a Judicial Commission maintaining that the present law regarding constitution of the commission was not sufficient to probe the issue and a new law was required in this regard.

In the prevailing circumstances it looks more of a witch-hunt than accountability. In fact it qualifies for the epithet of selective accountability. There were more than four hundred Pakistani citizens named in the Panama Leaks who owned off shore companies. Some of the stalwarts of the opposition parties including Imran Khan also owned off-shore companies. The formation of the Judicial Commission would have been the best option with sufficient time at its disposal to examine all the aspect of the case and to come up with recommendations that could plug all the loopholes of taking money out of the country through illegal means and strengthening of other relevant laws and rectification of the administrative inadequacies. Panama Leaks pertains to activities by the named individuals in the distant past and heavens would not have fallen if the case was thoroughly pursued with a futuristic approach.

The SC decision in the Panama case under the prevailing situation would generate more controversies and a political fall-out with wider implications for the country. The Supreme Court is not a court of trial except for constitutional issues. The petitions which pertained to offences of criminal nature should have been entrusted to the state institutions which are supposed to conduct an inquiry and subsequently initiate prosecution. Circumventing that process in itself is the breach of the law and the constitution, no matter how noble the intentions may be. As is said it is never too late. The Judiciary can still opt for the formation of the judicial commission to probe all the individuals and business groups named in the Panama Leaks instead of picking up only one individual whose name even does not appear in the Panama Leaks.

n             The writer is a freelance columnist.