Barrister’s call for full court gets credence; ex-AG Irfan Qadir says even if registrar had called via landline, it would have been wrong and unacceptable
ISLAMABAD: Barrister Aitzaz Ahsan has said that the Supreme Court’s confirmation of Registrar’s call to the departments concerned seeking nomination of choice candidate for the JIT proves Prime Minister Nawaz Sharif’s apprehensions that he would not get justice.
The top PPP leader and Constitution expert in a TV talk show on Thursday said, “If the judges of the Supreme Court are admitting that they asked the Registrar to include the name of Bilal Rasool in JIT by nominating his name, then Nawaz Sharif’s apprehensions have weightage.” The anchor questioned, “And what are these apprehensions?” Aitzaz replied: “That he (Nawaz Sharif) will not get justice”.
He moved on to say, “I am saying so if it was like this only that I do not believe and I am not ready to believe this that the Supreme Court’s Registrar would have nominated someone.”
On Thursday, during the hearing of contempt case against PML-N’s Nehal Hashmi, Justice Ejaz Afzal Khan said that the court had constituted a Joint Investigation Team to probe the matter and they had asked the Registrar to pick such and such names for the JIT. “But we see things are blown out of proportion and are being exaggerated and we know what to do," Justice Ejaz Afzal Khan further remarked saying, “Let’s take sternest action.”
It is worth mentioning here that the chairman of Securities and Exchange Commission of Pakistan (SECP) claims that he received a WhatsApp call from an unknown caller who stressed on him to recommend Bilal Rasool to be on the panel of the JIT carrying out the inquiry against the Sharif family. The SECP boss wrote a letter to Registrar Supreme Court of Pakistan informing that his staff told him that the SC registrar needs to talk to him and that when people from his office contacted him (registrar), he said he would speak on WhatsApp. “Immediately thereafter, I received a call on WhatsApp where in the caller said, the directions are that the name of Mr. Bilal Rasool should be included in the new panel," says Hijazi’s letter to Registrar.
Then, Zafar Hijazi said the unusual USA number caught his attention and “Date and time of the receiving call was 11:48pm and date was 25th April, 2017 whereas, in actual the time was around 4:45pm and the date was 27th April, 2017.” Looking at the suspicious call details, the SECP boss decided not to act upon the directions he received and bring the matter to the notice of the apex court, according to the letter. A similar call was also made to the State Bank of Pakistan which has been documented in government files.
Barrister Aitzaz Ahsan’s demand for the constitution of full court on the secret call issue got more credence on Thursday as not only the secret WhatsApp and Facetime calls were confirmed but, it is said, they were also made in violation of April 20 judgment passed by the five-member bench which heard Panama Case.
Five basic questions have arisen on the interrogation process and the JIT after the secret calls are admitted. Top legal brains in the country have declared that if heads of the organizations like the State Bank of Pakistan (SBP) and the Securities and Exchange Commission of Pakistan (SECP) were approached through internet apps (secret calls) by the Supreme Court registrar to get the desired officials included in the panel for the JIT, the entire process could turn into a futile exercise.
Para 3 of the “Order of the Court” in April 20 Panama Verdict reads, “The Heads of the aforesaid departments/ institutions shall recommend the names of their nominees for the JIT within seven days from today which shall be placed before us in chambers for nomination and approval.”
It is obvious from the judgement that heads of the organizations are ordered to make recommendations (…shall recommend…) while obviously the judges have the power to accept or reject any name. But could the SC registrar directly and secretly contact heads of the organizations and ask them to recommend any specific officer? Was it in line with, or violation of, the five-member bench Panama Case judgement?
First, the basic question relates to the fact that no one is denying the apex court’s power to appoint any officer of its choice from these organizations as happened many times in the past. But, as to why written orders were not passed for getting desired officials appointed and why the registrar made the call to heads of the organizations for this purpose and avoided passing written orders?
Second, the most intriguing question is about making secret calls to get specific officials appointed in JIT when the apex court has unambiguous and undisputed powers to ask for the same. WhatsApp and Facetime calls are always made for private or secret affairs and these are in no way suitable for official purposes.
The third question relates to the fact that why the SC Registrar Arbab Muhammad Arif first went out of the way to maintain and ensure secrecy of the calls. He made a call to the SECP chairman from his official landline number and asked him to get ready to receive a call on his personal cell phone from an internet app. What was being hidden and from whom? When the registrar made a secret WhatsApp call to SBP deputy governor on April 27, he directed specifically to send recommendation for one Amir Aziz and also intimated him that a memo will also be sent to the SBP shortly. However, when the memo was received after fifteen minutes, there was no direction for inclusion of a specific name.
The fourth crucial question relates to the fact that who was giving character certificates and negative reports of the officers on the basis of which it was reported that “reports of officers nominated by SECP and SBP are negative”? Why this process was not transparent? People have the right to know about the source of such reports. Such reports are always taken from multiple agencies so as to reach a rational and impartial decision. This question is very important because of a press release issued after an important meeting in the last week of April and the calls were made in the last week of the same month while the relevant implementation bench was formed in the first week of May.
The fifth important question is about who was recommending these officials and giving positive reports about them because of which the registrar of apex court had to make secret WhatsApp and Facetime calls?
Many questions are being raised regarding connection of those who worked on the Hudabiya Paper Mills case in NAB in 2000 and 2001 and their interest in the linked cases now. However, relevant and important are the questions which reveal the latest happenings.
Former attorney general Irfan Qadir has stated that when the SC can order appointment of any officer to the JIT through a written order, why the registrar made calls to heads of the organizations to seek recommendations for specific persons.
“Even if the registrar had made calls using a regular telephone line, it would have been wrong and unacceptable,” Irfan Qadir said during a TV interview adding, “The issue must be thoroughly probed to determine who ordered such calls.”
On the other hand, Barrister Aitzaz Ahsan, during a TV interview, was of the view that it is not possible for the registrar to make such calls on his own. “It seems impossible,” Aitzaz said. He maintained that a full court must be constituted to look into this very serious matter because the registrar cannot make such a call.
It is important to mention that the SECP chairman's letter highlighting the call made on April 27 was delivered in the Supreme Court on April 28 whereas the Implementation Bench was formed on May 2 and the JIT was constituted on May 6. This fact clearly reflects that SECP chairman's letter was not even considered though the SECP chairman immediately brought the issue in the notice of the SC registrar.
Not only the SECP, the SBP also brought on record the issue of secret WhatsApp call made to the banking sector regulator of the country.
An official SBP document dated April 28, 2017, available with The News, documents details of issue of recommending the name of one SBP officer for the JIT from very beginning till the end. The letter gives complete details of April 20 ‘Order of the Court’ and subsequent events.
According to this SBP document, the SC registrar sent judgement to SBP on April 20, asking it to recommend names of three officers for formation of JIT within seven days from the day the judgement was announced. According to the SBP document, it was agreed that the names of officers of additional director level would be recommended as the JIT would be headed by an FIA additional director general. The names were recommended. The documents reads: —
“Deputy Governor (Policy/Governor (A) received a WhatsApp call on 27th April 2017 at about 2:40 pm. The caller introduced himself as Arbab Muhammad Arif, Registrar Supreme Court of Pakistan, Islamabad. The caller informed that the office of the Supreme Court of Pakistan is issuing a memo in terms of which the SBP is required to submit two more names in connection with constitution of JIT. The proposed names be inclusive of Mr. Amer Aziz, Executive Director.
Later on a fax was received on the fax number of Governor office on 27th April 2017 at about 2:55 pm desiring therein two more names in connection with constitution of JIT. They have also desired that the requirement maybe fulfilled by tomorrow i.e 28th instant. However, there are no instructions of any particular name to be included.
The issue was discussed internally and with Governor SBP on phone, since the identity of the caller cannot be authenticated, therefore a decision is required to be taken on the memo received.
It was agreed to propose the following names for the purpose to the worthy governor;
1- Mr. Muhammad Javaid Ismail, Director, Financial Stability Department
2- Mr. Ghulam Muhammad Abbasi, Director, Islamic Banking Department
3- Mr. Saleem Ullah, Director Finance Department
Whereby Governor has been pleased to approve the following for onward submission to SCP;
1- Mr. Muhammad Javaid Ismail, Director, Financial Stability Department
2- Mr. Saleem Ullah, Director Finance Department
Accordingly, the DFA is placed for approval, please.
Shahid Mahmod Khan
Head of Department
28th April 2017”
What happened later on this count was witnessed in the first week of May but finally, the officers the registrar of Supreme Court desired to be nominated for JIT were finalized and there was talk of ‘negative reports’ about some without mention of as to who was giving these secret reports. There was no description of need and urgency for making secret calls.
