Panama case: Judicial commission is the way out

SC judges unanimous in disappointment over anti-corruption watchdogs; IB should have been part of the JIT

ISLAMABAD: The Supreme Court of Pakistan’s judgment on the Panama Papers petitions has resumed the debate about the chronic issues -- non-accountability of the ruling elite at the hands of anti-corruption watchdogs working at the wish and whims of the government.

That the verdict was split is a fact. What the minority judges viewed has many takers in the opposition parties whereas the decision handed by the majority judges was music to the ears of the government. That the Sharif family has not been given a clean chit by either side of the judges is what has been deliberately downplayed by the official spin masters.

The questions worth probing about the unexplained sources of wealth of the ruling family have been referred to the Joint Investigation Team. It will draw representation from the State Bank of Pakistan, Securities Exchange Commission of Pakistan, National Accountability Bureau, Federal Investigation Agency, ISI and MI.

Incidentally, the government had ordered in September 2016 to SBP, SECP and FBR for assisting the judicial commission it had asked the Supreme Court to constitute. The SECP later told the Public Accounts Committee that it couldn’t find a smoking gun while remaining within its purview; SBP said most of the money in such cases is generally transferred abroad through hundi/havala, hence The NAB had also declared that charges against the Sharif family were beyond its jurisdiction and FIA did nothing either. Inclusion of military-led agencies in the SC-formed JIT has left many wondering that how come intelligence operatives mandated with the national security will be helpful in the probe under question.

If that was inevitable, IB should also have been included. This is probably the first JIT in recent years constituted where ISI and MI are present and IB absent which is credited for big operations in Karachi, Quetta and Khyber-Pakhtoonkhwa.

How will JIT devise a mechanism to get answers from the Sharif family remains a question especially they have already failed to satisfy SC, something the judges noted in the verdict. And rather a bigger question is that if JIT will be able to conduct probe of the incumbent Prime Minister? Answer is in the negative.

There is no prize in guessing that even judges are not optimist about the performance of the departments assigned investigation through JIT. Although the five-member bench didn’t have a consensus decision, all the judges were unanimous in voicing disappointment over the performance of the accountability watchdogs.

A line of Justice Ejaz Afzal Khan, author of the majority judgment, is enough to pronounce this no-confidence: “Yes, the officers at the peak of NAB and FIA may not cast their prying eyes on the misdeeds and lay their arresting hands on the shoulders of the elites on account of their being amenable to the influence of the latter or because of their being beholden to the persons calling the shots in the matters of their appointment posting and transfer.”

This discontent is a source of contentment for the government. If history is any guide, all the institutions in general and anti-corruption bodies in particular have been used as a tool by the government of the day. Instead of carrying out their job, FIA, NAB and FBR etc either act as hit-men of the top boss for punishing his opponents or whitewashed the crimes of the government functionaries.

These institutions have such a notorious reputation that nobody would believe they would perform any job honestly and with a sense of duty. Their response was not different after Panama Papers story broke out. More than 400 Pakistanis were identified in connection with the offshore companies but they could not dare going after them because Prime Minister’s family was also named.

This sorry state of affairs was also bothersome for the judges who directed the formation of JIT headed by an additional DG of FIA, they however noted with regret that there was no other option left. “But it does not mean that this Court should exercise a jurisdiction not conferred on it and act in derogation of the provisions of the Constitution and the law regulating trichotomy of power and conferment of jurisdiction on the courts of law,” said Justice Ejaz Afzal Khan.

I would respectfully disagree with the honorable judge. The Supreme Court of Pakistan set example when the son of a former judge came under question after the allegations leveled by a businessman.

One-man commission was formed under the leadership of Dr Shoaib Suddle, the then-Federal Tax Ombudsman. He was granted judicial powers to direct any government authority for cooperation in the investigation. Failing in that was tantamount to the contempt of the court.

It was during that time that secretary interior was put on contempt notice for not relieving an FIA officer needed for this investigation. Finally, the officer demanded had to be put at the disposal of the commission. Same was the case with the other departments.

The commission had also hired private forensic and audit experts for getting to the truth. This is another story that Supreme Court dissolved the commission after the submission of the preliminary report that was damning against the former judge's son in addition to the businessman.

This time, the first family of Pakistan is under investigation. Anything short of a powerful commission of inquiry wouldn’t inspire the confidence of the public at large. It must be headed by a sitting judge or a person of integrity and courage like Dr. Shoaib Suddle who did PhD in white collar crimes.

Other than the setting up of a commission, the court must intervene for carrying out structural reforms in anti-corruption watchdogs. The Supreme Court of India has set many precedents in this regard. The Central Bureau of Investigation (CBI) was reformed under direction of the court which ordered the formation of the Central Vigilance Commission (CVC), outside of government influence, to oversee reforms.

The CVC became a statutory body with a bipartisan process of appointment of commissioners who would in turn constitute the majority of the committee that would select the director of the CBI. These were the key first steps in the court’s overall design of de-politicizing anti-corruption investigation in India.

Recognizing the threat of interference in anticorruption investigations, the court adapted its procedures to allow for constant monitoring of such investigations as a means to fundamentally transform the nature of the investigative machinery. This marked a radical departure from traditional, one-time remedies in public law.

An unstated premise of this innovation was the belief that judicial supervision could substantially remedy any irregularities in corruption-related investigation, hardly a foregone conclusion. Such steps increased the confidence of civil society and anti-corruption activists who tend to approach in cases of major scandals towards the highest court of India.