Retired judge says burden of proof should not be with the complainants but with the defendants in this case as they have to prove that they did not commit any financial wrongdoing
The federal government has started deliberations for forming a judicial commission to investigate the allegations leveled against the Sharif family after the release of the so-called Panama Papers, and the name of a retired judge of the Supreme Court and the terms of reference (TORs) of the commission are likely to be announced in the next couple of days, Pakistan Today has learnt.
A source in the federal government said that in-house deliberations were going on for the nomination of a retired judge to head the commission while TORs for the commission were also being discussed. The TORs will determine the powers of the commission.
While in the past a number of commissions have been set up in the country to probe various matters – from Hamoodur Rehman Commission to the Bin Laden commission – most have been ineffectual as they have failed to deliver a clear verdict or their reports were never released to the public.
Sometimes the commission are also not given enough powers in the TORs – the TORs determine how the commission will operate, whether it will probe or simply hold hearings, where will the burden of proof lie and whether it will be authorised to hand out punishment.
Talking to Pakistan Today, eminent jurist Justice (r) Wajihuddin Ahmed said that while the prime minister’s speech hinted that the government only wanted to form a commission to provide legitimacy to the PM’s children’s offshore accounts, one must wait and see what TORs they come up with.
“It is not necessary to form the commission under Commission of Inquiry Act 1956 which is normally used in Pakistan as the commission will probe over 200 individuals who owned offshore companies,” Justice (r) Wajihuddin said. “The commission can be formed just like the Judicial Commission formed to probe the alleged rigging in 2013 polls. However, the commission to probe rigging was a toothless one and the government needs to give more powers to the commission,” he added.
BURDEN OF PROOF:
While most of the political parties have assumed that the burden of proof would lie with the prime minister’s family as they would have to prove that the assets used to form offshore companies were legitimate, there has been no indication from the government side that they are going to submit to that. Even the prime minister said in his speech that those who had evidence of his family’s wrongdoing should bring the proof before the judicial commission.
Justice (r) Wajih, however, said that the burden of proof should not be with the complainants but with the defendants in this case as they have to prove that they did not commit any wrongdoing in building their empires and that they did not transfer their wealth illegally.
He also said it was wrong to assume that a retired judge did not have powers to probe the allegations of Panama Papers.
“The serving judges mostly have to also undertake their routine judicial work, so sometimes it becomes difficult for them to put the proceedings of the commission on a fast track. On the contrary, a retired judge can undertake commission’s responsibilities more fully,” he added.
Justice (r) Wajih said that if the prime minister really wanted a transparent probe, he should request the chief justice of Pakistan to form a high powered commission with at least three retired judges of good repute.
“One judge will not be able to do the required work. Moreover, the commission needs to be allocated magisterial powers so that once anyone is found involved in illegalities, the commission may fix responsibility and give punishment,” he added.
He said that the commissions needed to be proactive to reach the truth.
