SC itself can’t amend ToRs to probe offshore companies

ISLAMABAD: The Supreme Court can’t make the Terms of Reference (ToRs) on its own or amend the ones handed over to Chief Justice Anwar Zaheer Jamali by the federal government to probe the offshore companies, identified in the Panama Papers leaks, under the law and in the opinion of law experts.

However, the apex court can formulate the ToRs if the government withdraws its terms or writes to the chief justice to prepare his own ToRs for the specified purpose, a noted constitutional expert told The News.

As per section 3 of the Pakistan Commissions of Inquiry Act, 1956, the federal government may, if it is of opinion that it is necessary so to do, by notification in the official Gazette, appoint a commission for the purpose of making an inquiry into any definite matter of public importance and performing such functions [ToRs] and within such time as may be specified in the notification, and the commission so appointed shall make the inquiry and perform the functions accordingly.

This makes it clear that the law gives powers to the federal government to spell out the ‘functions’ of the commission. However, if it decides to abdicate this authority and delegate it to the Supreme Court, the apex judicial forum will get the power to spell out the ‘functions’ of the commission.

The views of the experts were sought after Prime Minister Nawaz Sharif announced on Saturday that the chief justice may prepare the ToRs on his own to carry out investigation into the offshore shells. This delegation of power will be required to be in black and white.

 A key federal minister, who is playing the main role in the controversy, told The News that the government will readily amend the ToRs as per the suggestions, if any, made by the chief justice. Like before, he said, the government, through a senior member of its legal team, will informally talk to Justice Jamali to know his reservations, if any, to the ToRs so that it can remove them promptly.

But, the minister said, if still the top judge was not satisfied and did not agree to the establishment of the commission, the government will have to accept his decision.

Another cabinet member believed that Justice Jamali might consent to the formation of the commission if the government and opposition arrived at a consensus on the ToRs and made a joint appeal to him to set up the forum. Simultaneously, they will also have to declare that they will have no grudge or objection whatsoever to the recommendations of such body.

He said it was no secret that the findings of the previous three-member judicial commission that had inquired into the election rigging charges and trashed them had been openly disputed by the Pakistan Tehreek-e-Insaf (PTI) and some other parties.

According to him, the apex court didn’t approve such unnecessary and imprudent finding fault with the report of this commission. He said it was because of the needless controversy row by the PTI and others that at least five retired superior court judges refused to be part of the new commission.

Meanwhile, neither the government nor the opposition parties have thus far come out with a way out to ensure investigation into the offshore companies if the chief justice says no to formation of the commission composed of sitting judges.

“If the chief justice refused to constitute the body, we may, after consultation with other parties, think over opting for the parliamentary committee to look into the offshore shells,” the minister said. He pointed out that leader of opposition Syed Khursheed Shah has repeatedly demanded that a bipartisan parliamentary body should be created for the purpose. Some other Pakistan People’s Party (PPP) leaders have also echoed the same theme.

Like others, the minister also expected the decision of the chief justice anytime as the top judge has flown back into Pakistan from his week long visit to Turkey.

In the meantime, there will be a surfeit of drafts of ToRs prepared by different opposition parties that they will take into consideration in their May 2 joint meeting. They had scheduled the session after the return of the chief justice.

The Jamaat-e-Islami has formulated its own 13-point ToRs while the PTI has also done the same. Both expressed confidence in the commission headed by the chief justice and comprising the sitting judges of the Supreme Court and turned down the ToRs handed over by the government to the chief justice.

“Investigation should begin with the prime minister and his family members and the commission should confine its probe into the Panama Papers leaks for the time being,” Sirajul Haq demanded quoting his ToRs.

However despite their apparent cooperation the opposition parties are not fully on the same page. The PPP will go with the other parties on the question of probe into the offshore companies to a certain extent but will not do anything that is meant to rock the boat and ignite a storm that will also engulf its own leaders including Asif Zardari, Benazir Bhutto and Rehman Malik.

All is also not well in the faction-ridden PTI. Its senior leader Shah Mehmood Qureshi has demanded an across the board accountability. “It is unacceptable that such elements in our ranks are ‘haji’ and those in other parties are corrupt. If there will be accountability of others, it will be inappropriate not to let our own people be made accountable,” he said. This was a thinly veiled reference to his party colleague Jehangir Tareen. Both continue to be at odds with each other.

Qureshi was embarrassed by the refusal of PTI Chairman Imran Khan to join him on the last day of his ‘eliminate corruption, save Pakistan’ campaign in the interior region of Sindh. The movement turned out to be his solo flight.