On Sadiq aur Ameen

Legal analysis of Panama Verdict

I gathered the courage to read the voluminous Panama verdict to learn the details of one of the most historic judgements. Before I comment on the specifics of the judgment we have to keep in mind that all constitutional courts are political in nature. It is because of that there are supporters and opposers of their decisions. This condition is same in all countries not just in Pakistan. But we are more emotional in our handling of court verdicts and our politicians are practitioners of politics of opportunism so they create chaos around it. Laws are written using an imperfect medium language. This makes it difficult for judges to ascertain the intent of the legislators when they interpret a law to pass a judgment on a case. The other dilemma for judges is to set aside their own biases and emotions when dealing with a case.
The Panama verdict became a contest between two competing ideas. Minority of the judges felt that it is within their jurisdiction to make judgments on morality of a case while majority judges felt that the question of morality should be left out and they should focus on interpreting the laws in letter and spirit. I tend to side with the majority with two disagreements that will be shared at the end of this piece.
To address the morality we have to first define what the nature of the truth is and whether it can be measured by an outside agency. Absolute truth is impossible to know because of the limitations of human nature and intellect. Truth has two components: on is visible and the other invisible. The visible component is the action of a person which we can see, hear, smell, taste or touch while the invisible component is the intent behind an action. Let me try to explain this with an example. A person says he sees the shape of an elephant in the sky formed by the clouds. No one else sees that shape. Can we be certain, then, that the person is lying? To ascertain that we have to know whether the person does actually perceive the shape of the elephant when he looks at the cloud or he does not see it but still gives statement that he does. Without ascertaining this fact we cannot judge a person being a liar.
In religious terms the intent of an action can only be known to God and no human has the power to be 100% sure of it. It is for this reason that many times judgements of cases turn out to be based on faulty or tampered evidence as it relies on evidence of other people who have their own invisible intentions. An interesting case recently came to the public knowledge that a lab supervisor in California falsified drug tests of over 22000 people resulting in false convictions. In the above example a friend of the person that sees elephant in the sky testifies that he can give evidence that the person is telling the truth. In this situation the chances of an error rises exponentially as we cannot know what is the intent of the witness to confirm it.
Judges have to also ascertain whether the intent of an action was voluntary or involuntary to utter a lie or commit a crime. The punishment for the two is different. In the above example the person does not see an elephant in the cloud but still say he does as compared to that he sees it. In the first situation he is lying while in the other he is not. Consider a traffic accident where a person saw a red light and ran over it which resulted in an accident resulting in death or he did not see red light and caused a death. First incident will carry severe punishment while the other is a human error with lighter punishment.
Another issue with truth is that how does a person prove to the other that he or she is telling the truth. The normative behaviour would be that the person will try to protect himself rather than harm himself, and will, thereby, have a motive to hide truth. Can we imagine a situation where a person convicted of a crime let’s say stealing or murder is asked to wilfully testify against himself. This is highly relevant in Panama case where it is expected that Prime Minister will implicate himself of committing a financial crime.
This gives rise to another question whether a court can be assigned the jurisdiction to make judgment on the truthfulness of a person. The jurisdiction of the courts is to punish wilful crimes or omissions in judiciary responsibility rather than punish lack of truthfulness as no person is a total liar. Judging lies is domain of the God while courts have jurisdiction to punish breach of laws. The minority judges in the Panama verdict took the view that despite absence of irrefutable evidence they have the jurisdiction to make a judgment about the truthfulness of a person. If this argument is considered valid then Supreme Court will have the powers to take suo motto action against every citizen that is blamed to have lied in a business transaction, domestic affairs, and any other matters using public statements of people. Because of this view I cannot agree with the judgment of Honourable Justice Asif Saeed Khosa that court has jurisdiction over questions of moral intent. Their jurisdiction is limited to judicial and legal.
The majority of the judges lead by Honourable Justice Ejaz Afzal took the view that they have to look at the petitions using two sets of laws without any recourse to the question of morality. They are laws related to qualification of parliamentarians (article 62 and 63) and second related to corruption by people holding high offices (NAB laws). They highlighted an important loophole in the election laws: that it requires a candidate to declare assets without providing any information about the sources of funds for acquiring it. Because of this loophole the person cannot be disqualified because of their failure not to provide evidence about source of funds to acquire assets. Since it could not be proven that Nawaz Sharif as a parliamentarian hid any assets in his declaration, he cannot be disqualified. At the same time the issue of corruption in their view required further investigation to ensure basic right of fair trial. They also felt that constitution has created a system of justice which has to be preserved in prosecuting a citizen. The judges accepted that state institutions empowered to prosecute have failed in their function which require that a Supreme Court supervised Joint Investigation Team (JIT) should be constituted to develop case for prosecution of corruption using creditable evidence that meets the standards of Qanoon e shadat. To justify inclusion of ISI/MI in the JIT they cited an Indian Supreme Court order where Research and Analysis Wing (RAW) was made part of a JIT to investigate a white collar crime.
I agree with the majority view – with two disagreements.

First the judges agree that politicians have appointed their cronies in government institutions and use their positions to influence prosecution. If this is the case then they should have asked Nawaz Sharif to give up his Prime Minister position during the term of JIT while he can remain member of parliament.

My other disagreement is that there has never been a martial law in India so they did not risk civ-mil relations by including RAW in a JIT. But in Pakistan there are fears of military intervention so inclusion of ISI and MI in a JIT raise genuine concerns.
Finally as I have said intent of a person is domain of God so we must refrain from judging intent of Supreme Court Judges unless and until off course we can present irrefutable evidence that they were influenced. Social media propaganda against judges is harmful and must be punished.