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August 2, 2017
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Case in Point: No easy answers

Opinion

August 2, 2017

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The Panama Papers became an unprecedented challenge for former PM Nawaz Sharif whose party and family were accused of surviving on corrupt practices, nepotism, favouritism, relying on incompetent loyalists and ignoring merit.

The matter was taken to the Supreme Court where an unprecedented legal battle concluded with the disqualification of the prime minister. The prime minister and his family are yet to face a trial for concealing assets. The trial has been necessitated by the fact that the prime minister and his family had felt it hard to answer some simple questions. The court asked NAB to file references based on the JIT report, which is not what has been prescribed by law.

Any judgement of the Supreme Court was bound to lead to debate in view of its political consequences. Some of the pronouncements in the judgment are not only unprecedented but also appear to be in violation of law and constitutional mandate. This includes the constitution of a sui generis JIT and relying on its report for filing references and for the disqualification of the prime minister without a formal probe. The constitution of an implementation bench and its merger back into the five-member bench also leaves many questions unanswered.

There is no doubt that the Supreme Court has vast powers. However, under Article 175(2) of the constitution, the court’s jurisdiction is only that which is conferred by constitution or law. Even its powers under Article 187 are subject to limits prescribed by Article 175(2). Nothing stops the Supreme Court from constituting any forum to collect facts to decide a controversy. However, any such order must be in accordance with constitution and law. Both the constitution of the JIT and its report do not emanate from any law, which makes it a sui generis forum. The court has directed NAB to file references against the Sharifs “on the basis of material collected and referred to by the JIT in its report and such other material as may be available with the FIA and NAB”.

With utmost respect to the Supreme Court, this order is apparently not in consonance with the limits of Article 175(2) of the constitution. Further, filing references in the given manner is in violation of section 18(d) of NAB Ordinance, wherein it is clearly stipulated that “the responsibility of inquiry into and investigation of an offence shall rest on the NAB to the exclusion of any other agency or authority, unless any such agency or authority is required to do so by the Chairman NAB”. References without formal investigation under section 18(d) of the NAB Ordinance may lead to legal intricacies. Dozens of judgments of the Supreme Court have held that when the law prescribes a thing to be done in a certain manner, it should either be done in that manner or not done at all.

There is settled jurisprudence that when the first step in a legal process is illegal, all superstructure built on it should fall to the ground. The judgment seems to be a departure from these settled principles. During 2011, a mega scam of fraud and misappropriation of taxes to the tune of billions of rupees in the Afghan transit trade was detected. Upon a suo motu notice, this matter was assigned to the FTO for investigation. Based on the report, the court directed NAB to file references. NAB filed 59 references against over 600 customs and border clearing agents. During the trial, the senior investigating officer of NAB admitted that no investigation was conducted under section 18(d). The court noted this glaring illegality and further found no evidence against the accused persons, and all the 59 references were dismissed.

Another question is of the final judgment in the Panama case being pronounced by a five-member bench, although the second part of the case was heard by a three-member bench. This is both unprecedented and open to a lot of questions. In the original majority judgment, the chief justice was requested to constitute a bench to ensure implementation for subsequent investigation by JIT. The majority judgment never required that the bench be constituted from within the five-member original bench. The CJ in his own wisdom picked three-members of the earlier bench; this bench was not an extended body of the earlier larger bench. How then could the five-member bench could pronounce a final unanimous judgement?

Coming to the disqualification of the prime minister, the court has proceeded to define assets and receivables in isolation to other facts. First, the court has not considered if there can be any other definition of a ‘receivable’. Second, the court has drawn its conclusion in a mechanical manner, disregarding several other factors which could have led to the conclusion that the ‘assets’ alleged to have not been declared were actually relinquished. An asset of such a nature is an asset of an individual only if he claims lien over such asset. Third, the court failed to appreciate whether the individual was factually or constructively controlling the asset. Fourth, the court did not make the allowance that stipulating the salary in the aqama document is a legal necessity and that salary is an abstract concept in this context.

Fifth, it is apparent from paragraph 13 of the judgment that the court has been complacent in taking a perfunctory view of the existence of the asset without considering how declaring this asset would have impacted the eligibility of the candidate. Sixth, the court has not pondered over what unfair advantage or undeserved benefit the individual has drawn and how significant such concealment was in the context of the elections. Seventh, the admission of the advocate regarding mentioning the salary in documents of Capital FZE is not a confession that could justify ouster from public office without a formal probe through due process. Lastly, the court has attended to a matter not brought up by the petitioners. The court has also not debated whether the extreme quantum of penalty is proportionate to the gravity of wrongdoing.

The judgement is also in conflict with the spirit of some important assertions made in the majority judgement whereby at least two judges have held (in paragraphs 22 and 58) that the PM could not be disqualified without recourse to due process. Both the judges who subscribed to this notion were part of the implementation bench. Only history will show how this sudden change in judicial trend haunts the democratic dispensation in our county.

 

The writer is an advocate with a doctorate in criminology.

Email: [email protected]

This article is part of a new series aimed at encouraging informed debate on the Panama case. Respected members of the legal community are invited to join in with their views.

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