Judges take lenient view in Imran’s case

ISLAMABAD: “International upheaval” and “public outcry against corruption” following and arising as a result of the Panama Papers’ leak, among other reasons, persuaded the three justices to hear the petition against Imran Khan and Jahangir Tareen, the lead judgment authored by Chief Justice Mian Saqib Nisar indicated.

The first reason relating to the international upheaval transpired when the verdict said: “It deserves reiteration that this petition has not been heard and adjudicated because of the consent given by Imran Khan to be accountable. It has been heard primarily because an international upheaval followed the disclosure of the Panama Papers in April, 2016.”

While spelling out the second reason pertaining to the public outcry for hearing the instant petition, the judgment said: “It is crucial at this stage to emphasise that we have expended time and efforts in our original jurisdiction for the sake of public interest in the circumstances of the public outcry against corruption that arose as a result of the Panama Papers’ leak.”

Otherwise, the ruling said, the appropriate forum in a case of such nature calling for the disqualification of an elected legislator is either the election tribunal or where there are established or admitted facts indicating disqualification, then before the high courts in their constitutional jurisdiction.

It was forcefully argued by leading lawyers after the Panama verdict that it was not for the Supreme Court to take up and adjudicate upon such cases, which, they vehemently stressed, should be left to the proper forums – the election tribunals or other judicial bodies of competent jurisdiction – to decide as mandated by the law.

The ruling also noted that certain skepticism surrounded the maintainability of the petition in particular because the court’s indulgence now may encourage challenges by all and sundry to the qualification of the legislators, holding public office.

Several politicians and lawyers frequently echoed this kind of negative encouragement in the wake of the judgment against expelled Nawaz Sharif, apprehending that it would fling open the floodgates of litigation questioning qualifications of lawmakers, which would keep them on tenterhooks all the time and hurt democratic process and the Parliament.

A cursory reading of the main judgment makes it clear that the judges took a lenient view in different aspects while deciding this case.

One example emerged when the judgment noted that arithmetical accuracy in reconciling amounts and events is not required in such a case of mis-declaration of assets. Only a coherent account of the sources of funds, their application and movement should be shown by reference to consistent and reliable evidence, even though it may suffer from gaps so long as the court is satisfied that the account is not patchy, inconsistent or unreliable. That burden has been fully discharged by Imran Khan.

The second instance surfaced when the ruling said that whereas in a case involving disqualification from elective office, the petitioner shoulders the burden of bringing positive and affirmative evidence that would condemn the respondent to ineligibility. However, the same standard of proof does not rest on an elected public officer, the respondent, to make out his defence. He has to present a, prima facie, arguable defence about the disclosure of his assets.

According to the verdict, these proceedings are free from the restraints otherwise imposed by law on the conduct of a trial by a court in adversarial proceedings. This view does not, insofar as reception of evidence is concerned, allow anything or everything produced by a party before the court to be accorded credence and probity without checks by it. The admissibility and reliability of the evidence produced by a party must however undergo further scrutiny on the basis of fair criteria to assess the truth, coherence and credibility of such material.

Accordingly, (third example) the material that the judges believed, notwithstanding the fact that largely it did not comprise original documents, is their contemporaneity with the events under scrutiny, the consistency and corroboration of the contents of such documents with the events or transactions to be proved and the custodial propriety from which such documents emanate. Most, if not all, documents produced by Imran Khan originated from a reliable source and invariably one with a living witness, be it his ex-wife Ms Jemima Khan, his English accountant Tahir Nawaz or banking friend in Pakistan Rashid Ali Khan.

The fourth instance came up when the judgment did not attach any importance to the non-disclosure of London flat by Imran Khan in his nomination papers for the 1997 elections, as claimed by Hanif Abbasi of the Pakistan Muslim League-Nawaz (PML-N).

It said during the latter part of his arguments, an objection was raised by Abbasi’s counsel with respect to Imran Khan’s participation in the 1997 general elections allegedly by concealing his London flat in his nomination papers. This plea is not contained in his pleadings nor did he produce any evidence in support thereof. At best the counsel voiced his suspicion about the disclosures made by Imran Khan in his nomination papers filed in 1997, stating that the Election Commission of Pakistan (ECP) had denied the availability of that nomination paper in its record, an oral request was made for the court to order its production.

“Considering the unsubstantiated and belated plea taken, the court did not grant indulgence on the oral request. The petitioner was merely speculating without certainty and with conjecture. The document in issue is twenty years old which the ECP no longer had in its record. The nomination paper had been accepted without objection but the respondent had lost the election. The matter was a past and closed transaction. The objection was raised as an afterthought and amounted to a random fishing inquiry. Therefore, the inquisitorial jurisdiction of the court was declined on grounds having reference to relevance, reason and fairness.”

The judgment said that in respect of each piece of evidence that the court believed, the identity and credibility of the person through whom such material was produced; the credibility of the keeper of such documents; the consistency of the contents of such documents with the surrounding circumstances, contemporaneous events and persons was scrutinised before granting admissibility and making reliance.

The verdict noted that several leading political personalities including the heads of government, most notably, in Europe and Asia stood exposed in the Panama Papers for directly or indirectly owning foreign undeclared assets through offshore trusts and/or companies established in tax haven jurisdictions of the world.

These revelations implicated, amongst others, the person and family of Nawaz Sharif. The public outrage that followed in Pakistan was spearheaded by Imran Khan before the apex court. The momentum thereby generated embraced Parliament which unsuccessfully attempted the formation of an inquiry commission into the allegations against the former premier; thereby landing a petition filed by Imran Khan and against Nawaz Sharif and his family in the lap of the court in mid-2016, the decision said.

It added that the present petitioner, Hanif Abbasi, filed the instant challenge shortly afterwards against Imran Khan who was the principal accuser and detractor against the former prime minister.