Justice (r) Wajihuddin Ahmed: ‘What is wrong is wrong’

 …and will remain so till eternity

Panamagate is all the rage, of course. But no sooner than the court’s proceedings end do the government and opposition hold a press conference war just outside. Each interprets the day as a vindication of its own position, to state the obvious. The evening’s barrage of talk show information is not much different.

So what is the average Joe to make of the proceedings? Have the Sharifs finally been caught with their hand in the cookie jar? Or is the money laundering charge just another one of those sticking points that triggered the ultimately uneventful dharnas and jalsas of the past?

To help make sense of a highly sensitive sub judice matter, DNAturned to Justice (r) Wajihuddin Ahmed for an exclusive interview.

Question: The application of Article 62 and 63 of the Constitution has come under renewed debate because of the Panama case. How do you interpret the application of these clauses in such cases?

Wajihuddin Ahmed: The most important offices in this country that act as a pivot on which all democracy revolves are parliamentary offices. Now, if you don’t qualify or get disqualified as per the Article 62, 63, it’s the same thing. 62 speaks of qualification, 63 speaks of disqualification. Qualification is viewed when one submits the nomination papers, it doesn’t mean that they can’t be reviewed later. However, Article 63 exclusively deals when a person is elected. If one has done or committed an act against these provisions, it means that they have ceased to remain amin, sagacious and righteous. Every person who is a member of any legislature, provincial or national, he has to be measured against this strict yardstick. If he falls short, he’ll be disqualified, no matter whether one is MNA, chief minister or even prime minister.

It is up to the court to decide whether the person is righteous, sagacious, and amin. The PM says that he has nothing to do with anything. If anyone wants to ask or inquire, they should contact his sons and daughter. Prime Minister Nawaz says that his children directly inherited it from his father.

The question arises then whether the grandfather was forgetful of Islamic inheritance law? Was he allowed to make a distinction between his presumptive legal heirs in his own life? According to Islamic concept and according to Sharia it can’t be done. One is not allowed to disinherit one child in favour of another. If that is not the case, let’s presume that one can disinherit and Mian Sharif did disinherit his other children. Mian Sharif, or if he is no more, the inheritors who in this case are two sons and daughter of Nawaz Sharif have to prove that they had sufficient assets on which they built on. Now, they’ll never be able to do it. There is an inference in Anti-Corruption law that those unexplained assets belong to the father and he has to answer for them. It is written in anti-corruption law that if a government servant owns nothing while his children or relatives have assets they can’t provide a satisfactory answer to, then it’ll be presumed that they belong to him. The burden of proof is first on the children, then on him. If children discharge the onus successfully, then the case is dismissed.

Q: Would you please comment on the credentials of various counsels involved in this case, especially since PTI has one and PML-N family has three, and the fact some were notably unprepared, at times, for a case of such significance?

WA: The strategy of the Sharif family is to prove that Prime Minister Nawaz Sharif has nothing to do with the whole business. They want to establish that Nawaz Sharif was an onlooker, a bystander. And in order to address the inconsistencies of the sons and daughter, they hired different counsels. As far as the question of hiring big, renowned lawyers by Sharif family, then the big people hire big lawyers.

All three counsels, Makhdom Ali Khan, Shahid Hamid, and Salman Akran Raja are known advocates. All three of them hold significant positions in the legal fraternity.

Q: Appreciating the sub judice nature of the Panama case, could you still interpret the proceedings so far for the general public?

WA: In law there is a presumption; ignorance of law is no excuse. There is a second similar presumption that everyone is presumed to know the law of the land. It is the other side of the first presumption. One can say that he is unaware of American law, or UK law. One can get away with it. But one can’t say the same of Pakistani law if one is living in Pakistan and is a Pakistani citizen. Because the presumption is that you need to know the law. In reality, that is not the case. For example, it is said about the lawyers that no lawyer knows all the law, but every lawyer knows where the law is. When the need will arise, he’ll get it out.

This case holds great importance for us. After a long time, a case has come before our courts that masses at large are interested in. People are following it on news channels, keeping themselves updated through newspapers and are discussing it. The question is how to educate them on the issue. I’ve been a visiting professor of law for about 23 years. I know how to tell people what law is. The PM himself has said in his address to the nation that those who have amassed wealth through ill-gotten means do not keep it in their own name. If PM’s counsel is saying that he has nothing in his name then as per the statement of the PM one doesn’t keep it in his name, he keeps it in name of his sons, daughter, in the name of Ishaq Dar, in Dubai and elsewhere.

People must be aware that if the PM has nothing and those surrounding him, he can’t explain their wealth or furnish the money trail. Then it is about time that PM bid farewell and stay at home.

Q: The general idea on the street is that the PTI counsel failed in making a strong case for the PM’s disqualification, and even the latter’s obvious contradictions did not seem to rattle the honourable court. Do you agree?

WA: See, even if lawyers failed to plead their case effectively and if the court has the material on whose basis a case can be synchronized, it should do so. There are two kinds of litigation, one is adversarial, other is inquisitional. In adversarial litigation, parties are responsible to prove. In inquisitional litigation it is the courts who have to use everything in their capacity to reach to the truth of the matter. It is correct that courts have to decide cases as per the law. Even in adversarial proceedings, it is the responsibility of the judges to reach the truth. Judges have to fill the gaps.

Unfortunately, what happened is that Bukhari has given piecemeal arguments, which judges too pointed out. He didn’t synchronise his arguments. He didn’t connect the things. Let’s assume that he didn’t present the material, Imran Khan didn’t present the material, Sheikh Rashid didn’t present the material, Siraj-ul-Haq didn’t present the material. But if respondents have submitted material that fills the gaps in the petitioner’s claim than it is the duty of the court to correlate and give a fair, just judgment. Maulvi Tameez-ud-din Case caused the ruin we presently have. The Supreme Court has an opportunity in the Panamagate case to move in a right direction.

Ultimately, if the judges fail in the court of the people, I won’t call them successful.

Q: Legally, even apart from this particular case, does a head of state have the luxury of making an “off the cuff statement”, especially on matter of monumental importance in a very formal setting?

WA: A member of the Bench replied aptly when he said that the whole speech in Parliament was written, how could it be off the cuff. I think, nothing better could be said about it. One can say this about trivial matters that a slip of tongue occurred, but when faced with odds of losing one’s membership of Parliament, such reasoning doesn’t hold water.

Q: Since the international financial crash of 2008 it has become relatively easy to investigate offshore companies suspected of routing laundered money. The usual practice is beginning the inquiry by requesting for the cash-flow of the company in question. And since the record provides complete details of all transactions relating to the company/account, it makes it easier to separate fact from fiction. Should this case also follow a similar line of inquiry?

WA: What you say is right. But at this stage if this issue is deeply delved into it will advertently or inadvertently harm the cause of the nation. Because then you’ll complicate a simple matter and you’ll open gates for a formation of a commission. Which will not result in anything possible. Judges and lawyers need not to lurch in such intricacies. Court’s inquiry should remain strictly to the point and within the ambit of Article 62, 63.

The Supreme Court has huge powers given to it in Article 184 (3), 187 and they should know this. No doubt a few things will remain unanswered, which can be investigated by NAB, FBR, etc. But relevant questions should be settled.