Vital legal questions keep emerging in Panama case hearing

ISLAMABAD: Considering the high profile nature of the Supreme Court proceedings on the offshore companies, vital constitutional and legal questions keep cropping up during the hearings, engaging the attention of all and sundry.

The interesting queries are made by the judges as the question of onus of proof frequently surfaces. Key petitioner Pakistan Tehreek-e-Insaf (PTI) Chairman Imran Khan has plainly told the five-judge panel that he is only to hurl allegations of corruption, money-laundering etc., over his rivals but it was not his job to provide proof and evidence that can be relied on the touchstone of the Constitution and law.

On the contrary, Defence Minister Khawaja M Asif says he had filed three important cases relating to corruption against the previous Pakistan People’s Party (PPP) government and proved them in the court by furnishing all the required evidence and proofs.

However, among others, a very interesting question has also come up in the instant hearings in the top court. Justice Ejaz Afzal referred to article 13 (b) of the Constitution that says that no person shall, when accused of an offence, be compelled to be a witness against himself. It means that the accused in the present proceedings being Prime Minister Nawaz Sharif and his three children including Maryam, Hussain and Hassan can’t be forced to give to the bench evidence that goes against them.

However, Justice Asif Saeed Khosa, who heads the panel, invoked article 184(3) and said that the Supreme Court has ample power and jurisdiction when it comes to serving justice. “We are not powerless. We can ask members of the Sharif family to show complete records in order to justify the money trail.”

Article 184(3) says without prejudice to the provisions of article 199, the Supreme Court shall, if it considers that a question of public importance with reference to the enforcement of any of the fundamental rights is involved, have the power to make an order of the nature mentioned in this provision.

Under article 199, a high court may, if it is satisfied that no other adequate remedy is provided by law on the application of any aggrieved party, make an order directing a person performing, within its territorial jurisdiction, functions in connection with the affairs of the Federation, a province or a local authority, to refrain from doing anything he is not permitted by law to do, or to do anything he is required by law to do; or declaring that any act done or proceeding taken within its territorial jurisdiction by a person performing functions in connection with the affairs of the federation, a province or a local authority has been done or taken without lawful authority and is of no legal effect; or on the application of any person, make an order directing that a person in custody be brought before it so that the court may satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner; or requiring a person holding or purporting to hold a public office to show under what authority of law he claims to hold that office; or on the application of any aggrieved person, make an order giving such directions to any person or authority, including  any government exercising any power or performing any function in, or in relation to any territory within its jurisdiction as may be appropriate for the enforcement of any of the fundamental rights.

Justice Khosa also referred section 161 of the evidence act, which gives a judge the power to ask any question or order the production of any relevant material. “We will try to do everything to dig out the truth in this case.”

Section 161 states that the judge may in order to discover or to obtain proper proof of relevant facts, ask any question he places, in any form, at any time, of any witness, or of the parties about any fact relevant or irrelevant; and may order the production of any document or thing; and neither the parties nor their agents shall be entitled to make any objection to any such question or order, nor, without the leave of the court, to cross-examine any witness upon any answer given in reply to any such question.