Judges also on trial

The SC decision in the Panama case, contrary to the expectations, did not lead to the final closure of the case legally or politically. The petitioners as well as the defendants, both claimed victory of their view point and stance on the case. However for an anodyne observer it was quite evident that the prayers of the petitioners for the disqualification of the Prime Minister under article 62 and 63 has not been granted. Though the two dissenting notes did agree to the propositions made in the petitions but as invariably is the case in the legal decisions, the majority verdict is taken as the final verdict of the court.

But as we witnessed, the petitioners, particularly PTI created a hype about the dissenting notes and tried to give the impression that the Prime Minister had been disqualified and hence had lost the moral ground to continue as Chief Executive of the Country. It also rejected the formation of the JIT claiming that with the Prime Minister in the chair it would not be able to work impartially. The hullaballoo raised by the PTI and the opposition on the dissenting notes even forced the CJ to tell Imran Khan that dissenting notes were a usual phenomenon all over the world and nowhere so much noise was raised as was being done in Pakistan. In other words he mildly snubbed those who were trying to read too much between the lines and giving wrong interpretation to the SC decision to gain political mileage. Till the submission of the JIT report they have been toeing the same line.

However with the submission of the JIT report in the SC and the revelation of its contents, the PTI and the opposition is showering unqualified accolades on the JIT from every convenient roof-top and repeating the same rhetoric that the PM had been proven guilty on the basis of the incriminating evidence collected by the JIT and therefore he should immediately resign. Not succumbing to the political pressure that the opposition parties, particularly PTI has been exerting the Prime Minister and his party have decided to stand their ground and wait for the final verdict of the SC, which sounds quite reasonable under the prevailing political circumstances.

But what is interesting to note and what again proves the opposition wrong as to the interpretation being given to JIT report, was the remark of Justice Ijaz ul Ahsan that the SC bench was not bound to follow or implement the JIT report and has asked the lawyers of the petitioners to explain as to why the court should accept it. It is surely the prerogative of the court to accept it or reject it after judging it as per the yardsticks established in the relevant laws. It is pertinent to point out that it was also remarked that the statements being made would be considered under CrPC (Criminal Procedure Code).

Even in the judgment of the SC, it was duly stressed that the court could not take decisions by setting aside the prevalent laws. The main judgment strictly talked in terms of law and the constitution while dealing with this highly politicised case. The argument used by the main judgment not to accede to the prayers of the petitioners was strictly premised on the law and constitution. The ruling said “Any allegation levelled against a holder of a public office requires an investigation and collection of evidence showing that he or any of his dependents owns, possesses or has acquired assets disproportionate to his known means of income. Such investigation is followed by a full-fledged trial before an accountability court for determination of such liability. But where neither the investigation agency probed the case, nor any of the witnesses has been examined and cross-examined in an accountability court nor any of the documents incriminating the person accused has been produced and proved in accordance with the requirements of law of evidence nor any oral or documentary pieces of evidence incriminating the person accused has been sifted, no verdict disqualifying the holder of office could be given by the Supreme Court in a proceeding under Article 184(3) on the basis of record which is yet to be authenticated. The bench must draw a line of distinction between the scope of jurisdiction of the apex court under article 184(3) and that of the accountability court under the NAB law and between the disqualifications envisioned by Article 62 and 63 and section 99 of ROPA and the criminal liabilities envisioned by sections 8,9,10,15 of the NAB law, lest we condemn any MP on assumptions by defying the requirements of a fair trial and due process” The inference one could safely draw from the foregoing arguments of the court is that it did not agree with the judges who gave dissenting notes based on assumptions.

The arguments based on law also negated and nullified the contentions of the two dissenting judges implying that they had not drawn their conclusion strictly according to the law and the constitution. Hence the formation of JIT to complete the legal formalities and making sure that the accused were not dealt unfairly. In view of the foregoing facts one tends to believe that the apex court would deal with this highly politicised case strictly according to the law and not the wishes of the petitioners. In this particular case the Judges would also be under trial.

My personal impression is that the JIT report has many loose ends and in certain respects it has also transgressed the mandate given by the SC, particularly its recommendations regarding opening of closed case of the Sharif family, which in the legal parlance is known as ‘double Jeopardy’ that forbids trial of a person twice under the same allegations and holds that the cases once decided by the courts and close cannot be re-opened.

The defendants are engaged in giving their legal arguments on the findings and recommendations of the JIT and it would then be up to the SC to draw its conclusions. But in view of the controversy surrounding the JIT and the fact that the case somehow gave the impression of a witch-hunt rather than across the board accountability, it would probably be advisable for the SC even now to form a Judicial Commission and have all those investigated whose names have appeared in the Panama Leaks or send the case to the relevant trial court to fulfil all the legal requirements in regards to dispensation of justice. The court might also consider giving advice to the government and the opposition parties represented in the parliament to come up with a law that ensures fool-proof across the board accountability of all the public office holders and the state institutions, if the objective really is to eliminate the curse of corruption and misuse of authority by the rulers.