When it comes to the Panama Case, the burden lies on the accuser
For more than three months the Supreme Court has been hearing the Panama case as a consequence of the petitions filed by the PTI, JI, Awami Muslim League headed by Sheikh Rashid Ahmed and a private citizen.
The case which was ostensibly brought before the SC for political reasons has since become highly politicised. The main petitioner, PTI, made the Prime Minister, his sons and daughter respondents in the case and prayed the court to disqualify the Prime Minister for his involvement in the panama-gate, notwithstanding the fact that the name of the Prime Minister was not mentioned in those papers. The main thrust of Imran Khan has been on the allegations regarding money laundering, tax evasion, plunder of national wealth, Marriyam Nawaz being dependent on the Prime Minister and the flats having been purchased in the 1990 instead of 2006 as claimed by the respondents. However, as has transpired during the court proceedings so far, the PTI has not been able to present any credible proof to substantiate its allegations, other than submitting newspaper clippings and un-authenticated documents. The court is on record to have said that it could not decide the case on the basis of the newspaper clippings but solid evidence.
However, the court (instead of insisting and asking the PTI and other petitioners to prove their case with the required and admissible evidence acceptable), seems to have shifted the burden on the respondents to prove that the allegations against them were wrong, despite the fact that the burden of proof lies on the accuser. This is an internationally recognised principle of jurisprudence and a number of courts of different countries have invariably reiterated it in their judgments. Justice Debra Stevens of the Washington Supreme Court in a verdict in October 2014 observed “Typically, the burden of proof lies with the accuser. Otherwise anyone could accuse anyone else of anything and then said, prove me wrong. And that is not how the legal system or logic works. Requiring the accused to provide such proof to the preponderance of evidence standard violated constitutional rights. Asking a defendant to do more than raise a reasonable doubt is inconsistent with “due process principles” that raises a real possibility of wrongful convictions”.
Echoes of reopening the Hudabiya case (among others), are also resonating in the court which violate another legal principle and a fundamental human right of double jeopardy which enjoys legal and constitutional protection all over the world. Double jeopardy is a procedural defence that prevents an accused person from being tried again on the same or similar charges and on the same facts, following a valid acquittal or conviction. In a number of countries including Pakistan guarantee against being twice put in Jeopardy is a constitutional right and in some it enjoys protection under statues. Article 13 (a) of the Constitution of Pakistan says “no person shall be prosecuted or punished for the same offence more than once”. This legal doctrine originated in Roman law based on the principle that an issue once decided must not be raised again. Similarly Article 14 (7) of the International Covenant on Civil and Political Rights it is recognised that no one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country. European Convention on Human Rights also stipulates that no one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same state for an offence for which he or she has already been finally acquitted or convicted in accordance with the law and penal procedures of that state. Logically speaking the cases other than panama case being mentioned do not have any relevance to the prayers sought in the petitions.
It is pertinent to point out that in spite of the fact that the burden of proving the allegations lies with the accusers, the Prime Minister and his family members have tried to answer all the questions asked by the court and presented all the authentic documents which are available with them. The insistence on the missing documents pertaining to the transactions made and done by the father of the Prime Minister and grandfather of his children named in the case, does not really make sense. The possibility of those documents being not available with the family is a real possibility. Even otherwise under the law of the land no investigating agency or court can probe into a case more than seven years old. In the light of the foregoing arguments and legal principles, it is not the responsibility of the respondents to prove the allegations wrong or establish their innocence, except creating a reasonable doubt about the veracity of the allegations.
Considering all the foregoing facts, it is indeed a commendable gesture on the part of the Prime Minister that, in spite of enjoying immunity under the constitution, he has neither claimed it nor challenged the maintainability of the petitions, expressing full faith in the court maintaining that he wanted the haze to be cleared and truth unravelled. This adequately refutes the notion being rubbed in by some quarters that he and his family were trying to hide the facts regarding the case.
The Panama case has assumed great importance and the verdict in the case will have far-reaching political implications. It will also test the credibility of the judiciary. Though a lot of pressure is being built on the court by the stakeholders in the case but it is the earnest hope and prayer of the people of Pakistan that the apex court ignoring any extraneous and subjective considerations solves the rigmarole of the Panama Leaks strictly according to the law. In this regard, it is really very reassuring to note that the Chief Justice Mian Saqib Nisar addressing the Pakistan bar Council on 15 February unequivocally stated that independent judiciary was a backbone of every country and the judge was bound to give decisions in accordance with law as giving decision in conformity with the law was the obligation of every judge. Pakistan surely needs independent judiciary and not judicial activism. All eyes are fixed on the judiciary to prove its independence.
