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April 20, 2017

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Panama Papers: Different likely dimensions of SC verdict

As Saad Rafique has said, only Allah and judges know what is in the judgment. Without claiming to know the future, I think the SC judgment to be announced today will most likely be on the following lines:

Nawaz Sharif will not be disqualified or removed. And correctly so because ALL assertions of the petitioners are factual and EACH one of them has been ferociously denied by the respondents (Sharifs).  In all the petitions filed, pursued and decided in the high courts and the Supreme Court, there is always a broad agreement between the parties on the facts of the case. It is on the legal implications and consequences of those facts that the two parties disagree and clash. There would hardly be a petition in which the two parties disagreed and fought so ferociously on facts. This being the case, articles 199 and 184 (3) of the Constitution bar the Supreme Court from dealing with a factual question while hearing a petition. 

In this petition, the entire case is facts against facts and no matter how wrong Nawaz Sharif may be, the SC, without even calling him as a witness, CANNOT declare a single factual assertion of Imran Khan as true, or proceed on the assumption that any allegation against Nawaz Sharif is true. 

This is a clear constitutional position and every good lawyer knows it.  Yes, the maximum that the SC can do, and which it routinely does, is give a general relief based on its tentative and prima facie understanding of facts. 

To this extent, in its judgment, the SC will catalogue Imran Khan's allegations and questions, then catalogue answers, or lack of answers, from the Sharif family and express its own dissatisfaction with the Sharifs' answers and explanations and point out the contradictions in those answers. 

While concluding the above, the court will be very harsh with NAB, FIA, SBP, SECP, etc. It may even take some action against the chairman of NAB.  In the end, the court may pass an order on the following lines: —

"We cannot decide so many critical factual questions in this petition but since we realise that questions raised by petitioners are very important as they relate to the prime minister of the country and since PM’s lawyers failed to give a satisfactory or complete answer/explanation to the questions raised by the petitioners and the court, we believe that national interest requires that we set up a judicial commission to look into these questions and answer them. 

We, therefore, set up a judicial commission comprising .....

The commission will have all the powers of a civil court. 

Following shall be the Terms of Reference for the Commission: 

a) Exactly on which date London flats were purchased by Nescol etc?

b) How much money was paid to purchase those flats?

c) How was that money paid, what were its sources? Etc etc.” 

The SC will also order NAB, FIA and all state functionaries to help the commission, impartially and diligently so that it can prepare its findings as per its TORs. 

The commission will record evidence under the Qanun-e-Shahadat, and will conduct its proceedings on a day-to-day basis.

The commission will be authorised to summon and question any person whether private person or a government servant, no matter how high the office, even PM himself. 

Above is the maximum that the SC can do. 

The SC will dismiss the plea to disqualify and remove Nawaz Sharif. 

It is on the above lines that I feel the SC may announce its judgment. 

If the order is on the above lines, it will be quite fair and in accordance with law and merit. 

There is just a tiny possibility of one thing: 

When setting up the commission, the SC may ORDER PM to step down till his name is cleared by the commission OR it may hint e.g. 'we leave it to Nawaz Sharif to decide if it would not be better for him to step down just till the commission completes its inquiry and submit its report to this court.' 

Or SC may not say any such thing. 

REACTION: Imran will be disappointed if Nawaz Sharif is not removed, but the N League will be happy. 

All the media that had created so much hype of PM being disqualified will be disappointed. 

If the order is on the above lines, it will be more damaging for the Sharif family than disqualification. 

A disqualification or any other such order could have a martyr's effect for Nawaz Sharif. Punjab would have rise in protest, Nawaz Sharif would have stayed as chairman of N League. He would have called snap elections and the N League would have swept back into power with a far bigger majority, with Maryam as the PM, armed with her own martyr. 

Sending Sharifs to the commission will be very damaging to N League and the Sharifs. Day after day, the commission proceedings with 24-hour media coverage may be very humiliating for Nawaz Sharif.

Imagine PM’s son coming from London and getting cross-examined by Imran Khan’s lawyers. Then Maryam, her mother, and PM himself cross-examined about every sordid detail of their finances and their business dealings of the last 40 years and having to answer all PTI’s lawyers questions under oath. 

Then SBP governor, etc, plus the PM and his family will have to explain on oath all their contradictory statements. 

The circus will continue for a long time. 

The SC will certainly order the commission NOT to be influenced by any of SC’s comments or observations in the judgment. 

But will the commission be doing its job if it does not address each of those contradictions and lack of information that the SC mentions in its judgment? 

Apart from above is the serious fact that after recording all evidence, the commission WILL have to give its OWN findings, and not “he said or she said.” 

What could those findings be?

Let's think of the best case scenario for Sharif and hope that, truth aside, THE COMMISSION WILL ACCEPT SHARIF'S VERSION. 

But what is their version? 

The Sharifs have to-date not put forward their own version of events. 

So before the commission, day after day, it will be the Sharifs in the dock. They’ll be humiliated every day. 

And they won't become political martyrs. 

Instead of ending, the real Panama circus will start when the commission begins. Of course, cameras will be kept outside the commission. Till now it was just a warm up. 

The Panama circus is coming to town and the hungry beast of 24/7 news channels does not know about it yet. 

The Sharifs may get humiliated and damaged even before the commission actually prepares and submits its report to the SC. 

It seems that the country will see the media trial of the Sharif family with the PTI summoning Ishaq Dar, Maryam, Nawaz Sharif and his sons and will ask them all kinds of questions. 

And answers won't match. 

Strategically, how did the Sharifs, and their lawyers brought them to this stage where they ended up answering 40 years of their business details and finances and taxes — amazing incompetence of their advisers. 

During the last one year, there were many an occasion where they could have opted for an escape route with minimum damage. 

And if the commission gives its findings that Sharifs have failed to satisfy that the flats were purchased by them through legitimate sources, it is THEN AND ONLY THEN that the SC can and must pass an adverse order against Nawaz Sharif such as ordering the NAB to file a reference under Section 9 of the NAB Ordinance against the family for having assets beyond their known sources of income.

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