Panamagate case: As matters were stated and stood before the SC Bench

Is the Court headed towards forming a fact-finding commission?

Mr Bukhari rode high on rhetoric and self-deprecating humour while pointing out numerous contradictions in the statements given by different members of Sharif family over a decade. Unfortunately for PTI and fortunately for PML-N he offered neither citations to substantiate his claims nor precedents to cement his contentions

Just in the same manner that Panamagate hearing moved from the congested, packed-to-size Courtroom No2 to the spacious, comfortable Courtroom No1 for two days, only to get back to where it originally started, many observers fear that same would be the fate of entire case; it will move to and fro and little will change.

What started off in a land far-far away with what is termed as the ‘greatest leak in the history of journalism’, commonly referred to now as Panama Papers, cumulated in forming of 5-member Supreme Court Bench headed by Justice Asif Saeed Khosa after the previous Bench met its demise when former Chief Justice Anwar Zaheer Jamali retired. Incoming CJP Saqib Nisar kept himself away and trusted former top criminal lawyer (Read Justice K) to preside over a case unlike any other the SC had before.

While people of Pakistan were well aware of havala and hundias means to funnel ill-gotten wealth abroad, the term ‘offshore companies’ dethroned them both in public imagination as well as social discourse. Since Panama Papers dawned upon the world last April, the very word ‘offshore company’ now stands (at least in Pakistan) for corruption, tax evasion and money laundering all paired together.

From 4 January 2017 onwards, Justice Khosa led the 5-member Bench of grey-haired men of law who’ve spent most of their lives either pleading before the Courts or adjudicated matters brought before it. All of them, once, wore black coats and argued from hefty petitions before being elevated to High Courts where they donned black robes and held gavels that are rarely used and eventually made it to the SC.

Their Lordships now preside over a case that is intricate, rather Byzantine, to say the least. There is a nowhere-in-sight money trail; a family, referred to as a ‘conglomerate’ by one of their Counsels, being represented by three separate advocates who are well-respected, learned and seasoned; an ‘Onus of Proof’ that keeps on shifting hither and thither; a family that founded and sold factories in holiest of lands and in a country nearby; curious queries pertaining to ownership of four Avenfield flats in upscale London; and other motley groups of questions that beg both answers and explanations.

After the formation of new Bench by CJP Saqib Nisar, Naeem Bukhari, the self-professed Stepney Counsel of PTI, argued before the Lordships for 17 hours, spanning over six days. Mr Bukhari, an exceptionally witty individual, relied heavily on revelations of Panama Papers and delved deep in speeches by PM Nawaz Sharif in Parliament and his addresses to the nation. The excerpts from interviews of both his sons, Hassan and Hussain Nawaz Sharif, his wife, Kalsoom Nawaz and daughter, Maryam Nawaz, were read before the Court followed by Mr Bukhari’s commentary on contradictions and anomalies they contained.

Mr Bukhari rode high on rhetoric and self-deprecating humour while pointing out numerous contradictions in the statements given by different members of Sharif family over a decade. Unfortunately for PTI and fortunately for PML-N he offered neither citations to substantiate his claims nor precedents to cement his contentions.

His arguments lingered on and often felt repetitious till he concluded them last Wednesday, took a day off on Thursday, and was back on Friday.

Enter Sheikh Rashid. He came, he argued, he entertained, he reminded the Court to do ‘justice’ and kindly call PM Nawaz Sharif to the Court and concluded. Sheikh Sahab mistook the Bench for a rally and he treated the Bench in the same manner. He came loaded with 12 citations, Justices noted them and, luckily for all, he was heard no more.

“To disqualify an elected member is not a walk in the park. PM’s Counsel Makhdoom Ali Khan told the Court that if they want to disqualify PM in Article 62 (1) (f), the Supreme Court has held before in majority of the cases that it presided before came after being decided by a lower court. After the 18th Amendment, in order to disqualify a representative of people a declaration from a Court is a must,” Mr Iqbal said

Barrister Makhdoom Ali Khan, a former Attorney General of Pakistan during Musharraf’s regime, a seasoned lawyer who once appeared before the SC on behalf of Jang group when more than a decade and half back during last government of his present client Mian Nawaz Sharif was in quest of slamming the Urdu daily, took the dais after Jamaat-e-Islami counsel Advocate Tauseef Asif sought some time to enter a new application as the Bench remarked that he made none of the person’s whose name was in Panama Paper as respondents.

Makhdoom came prepared, very prepared in fact, as his arguments were based on precedents, citations, previous cases decided by the Supreme Court, intricate legal interpretations, all aimed to tell the Court that his client, PM Nawaz Sharif, has nothing whatsoever to do with whatever is under consideration of the Honourable Court. Mr Makhdoom will continue his arguments from tomorrow. So, brace yourselves, there is more to come.

Other voices

I reached out to bag a comment from Mr SM Zafar, a name that needs no introduction and thus none will be given. “So far the proceedings tell us that judges have not made up their minds about the decision. In the beginning it all started with Panama Papers, now the whole case has become smaller and reduced itself to the PM statements that whether they were true or not,” he said.

“Judges say that they are looking for the ‘truth’. Now in their pursuit of it they need something substantial that can verify that he (PM) has given a false statement,” Mr Zafar replied when asked what the Bench was groping for.

His reply to why the Sharif Family resorted to hire three different counsels was that the choice reflects Sharif family’s desire to keep things ambiguous. “In the end in order to inquire about the money trail, I think they (Bench) have to form a commission,” his voice had both concern and conviction.

My mentor in all things legal, former Additional and District Judge and Advocate Supreme Court, Mr Majid Bashir, dictated his response and insisted that I pen it down for greater clarity and exactness. I’ll quote him verbatim; “My expectation is that as a Constitutional Court and an Appellate Court as well the matter referred by the PTI, if it does not fall within the ambit of the Constitution than the matter will be referred to the commission for fact-finding. The petition is about money laundering, banking transactions, company related issues. For this reason fact finding report is required which is not the mandate of the Supreme Court”.

“If the matter is not decided, SC may also refer it to NAB, SECP or Election Commission,” he added later.

The reporters who report the proceedings of the Court, unless they have a column of their own, have no way to tell the masses what their take on the matter is. About time that we ask from the herald himself. Nasir Iqbal works with one of the most prestigious newspapers in Pakistan and has an extensive experience of court reporting. Well, his take on the matter goes thus.

“To disqualify an elected member is not a walk in the park. PM’s Counsel Makhdoom Ali Khan told the Court that if they want to disqualify PM in Article 62 (1) (f), the Supreme Court has held before in majority of the cases that it presided before came after being decided by a lower court. After the 18th Amendment, in order to disqualify a representative of people a declaration from a Court is a must,” Mr Iqbal said in his signature humble tone.

When asked what strategy the Sharif Family has in mind by hiring one counsel per family member, Mr Iqbal said that in their own right, these lawyers are some of the best lawyers in the country, they have strong legal acumen. “Many of the judges have remained their students, colleagues or they started their careers together. They are also inspired by their arguments. Plus, the rationale behind hiring different lawyers is to make sure that the premise of their arguments stays intact, as they couldn’t argue on two different lines at one time. Another thing is to keep the PM steer clear of all the mess,” he added.

On what will be the deciding factor in the case, people’s will or lawyers skills? Mr Iqbal said that the Court proceedings are dry and the layman, man in the street and masses at large have no interest in them. “The Bench on the other hand will decide on the basis of evidence before it and will pay no heed to what is said before the cameras, before the public. The Courts need to tread carefully. Make no mistake, the observations in the SC don’t necessarily reflect the minds of the judges. They (Bench) provoke and poke the advocate to present before them to give away further details. However, their decision will remain within the confines of the law and Constitution. They can’t make laws of their own,” and thus concluded the man who report the happenings before Honorable Court.

Lawyer, check. Reporter, check. What we are missing is a take from a politico and a voter.

Meet Israr bhai, a foremost prototypical example of ‘layman’ to ever walk on the face of earth, father of three who works to earn an honest wage month in month out. Untouched and unconcerned by all that is argued before their lordships by learned counsels of PTI and PML-N, Mr Israr, like countless others, solemnly believes that Supreme Court should concern itself with issues like quality of packaged milk, selling of substandard ghee at utility stores and dispensing justice to poor souls like Tayyaba.

“The quality of what we eat and drink is way more important than a battle for the PM house being fought by two political foes. SC should also regulate prices of food as well,” said Israr bhaiapparently clueless of Justice Khosa’s remark in which he rued the Supreme Court’s attempt to regulate Sugar prices in the past.

However, different are the worries of Usman Saeed Basra, former Secretary General of PTI Central Punjab, as he has his fingers crossed and worries that it is the last chance for SC to shed the yoke of ‘doctrine of necessity’ that is gnawing at the core of our judicial system.

“Change will come when we learn to call a spade a spade,’ said Mr Basra. Whose spade that spade will be, he didn’t specify.