Back to square one

December 18, 2016

The proceedings of the Panama case in the Supreme Court have exposed the legal challenges that lie in holding the politicians accountable

Back to square one

The political situation revolving largely around the Panama case remains fluid and tense. As the bench headed by the retiring Chief Justice of the Supreme Court of Pakistan Anwar Zaheer Jamali stands dissolved, the Pakistan Tehreek-e-Insaf (PTI), the party mainly pushing the courts to take action against the prime minister, is now back in the parliament where fireworks are erupting as expected.

After six hearings of the case on Panama Papers, on December 9, the outgoing chief justice adjourned the case till the first week of January, when the case shall begin with fresh proceedings.

Heading the five-member bench, the chief justice of Pakistan wrote in the order, "These matters (earlier proceedings) shall not be treated as part heard for the reason that by that time, one of the members of this bench (Chief Justice himself) will be laying down his robes (retiring on December 30)."

This back-to-square-one situation has given a new lease of life to the issue, with echoes in parliament and continuing signs of political agitation indicated by the opposition parties, mainly the PTI and Pakistan People’s Party (PPP).

The sitting chief justice constituted this bench in response to the protest call of one of the main opposition parties, the PTI, that had announced to lock the capital down. It should be noted that the PTI’s earlier petition was rejected by the same court terming it as "frivolous". The petition by the PTI Chief Imran Khan prays for disqualification of Prime Minister Nawaz Sharif for not disclosing details of his family’s properties in London through two offshore companies listed in the Panama Papers.

The November 2 call of the PTI to lockdown Islamabad had created unrest and chaos in the country, also since the government had blocked all major highways leading to Islamabad.

"We have taken up this case after seeing this unrest and we want to take the country out from this chaos and we will ensure justice," Chief Justice Jamali had remarked in the first hearing of the case on November 1. The bench, on day one, also sought the opinion of all the parties in the case regarding forming a judicial commission under the supervision of the court to look into the allegations of corruption and contradictions in the two national addresses and one speech in the parliament by PM Sharif. However, the main petitioner, the PTI had requested the court that the same Supreme Court bench should hear the case instead of a commission.

"Formation of commission of inquiry under the Pakistan Commission of Inquiry Act 1956, looking at its limited scope, will result in the constitution of a toothless commission, which will serve no useful purpose, except giving bad name to it," the registrar of the SC had said in reply to a letter from PM Sharif.

"We believe that we have made out our case but if the Supreme Court comes to the conclusion that we have not, so be it," Naeem Bokhari, counsel of the PTI told the court on December 9. While the defending party’s counsels, he said they would accept whatever the court decides. However, they did have some reservations on forming a judicial commission which, they thought, did not fall under the jurisdiction of Supreme Court of Pakistan.

The court gave a second call for setting up a judicial commission on December 7 when Salman Butt, the counsel of PM Sharif, told the court they had no 40-year-old record of money trail for the purchase of London flats.

"Such delays and hurdles in a legal battle are not unusual, especially, when there is insufficient evidence to decide. I think the court, when it took up this case, had thought that if either side brought strong evidences, they would decide the case. But when they saw that the evidence against the accused was insufficient and the defence counsel had also failed to satisfy court and time was running out, they thought to go for a commission," says Syed Ali Zafar, former President Supreme Court Bar Association (SCBA) while talking to TNS. "However, the technical challenges to take up this case still remain."

He says the biggest challenge in the case was whether the Supreme Court had the jurisdiction to take up this matter of alleged corruption "because it is not a trial court".

"Then, there is the question whether the Supreme Court can form a commission or not. If yes, what type of commission it will be? Also, whether the SC can give sentence on this prima facie corruption?" says Zafar.

He thinks if there was sufficient evidence or ground before the SC, "the best course could be to set up an independent judicial commission along with two technical experts and decide the matter." Zafar is of the view that in the next three weeks, the petitioner party might rethink about the commission too.

The December 9 adjournment of the Panama case was received by the ruling Pakistan Muslim League Nawaz (PML-N) ministers present in the court with jubilation while the PTI camp seemed in dismay.

Earlier, in May this year, the SC had returned the federal government’s request to appoint a judicial commission to investigate the matter. "Formation of commission of inquiry under the Pakistan Commission of Inquiry Act 1956, looking at its limited scope, will result in the constitution of a toothless commission, which will serve no useful purpose, except giving bad name to it," the registrar of the SC had said in reply to a letter from PM Sharif.

The latest adjournment by the SC has opened new political options for the PTI. It has announced to hold public rallies, plan protests and raise voice against the Sharif family in parliament till the next hearing.

"We can say there is loss to the PTI when the case is decided and it loses. Till then, there is no political loss to the opposition parties. Only an early disposal of this case can help the ruling PML-N, whether it is done by the court itself or through a commission," says analyst Mazhar Abbas. "If the Panama issue lingers on, it will ultimately create a negative impact on the PML-N vote bank. That is why Nawaz Sharif will never consider keeping it alive till the next elections."

While addressing the gathering to celebrate the 150th anniversary of Lahore High Court, former judge of Lahore High Court Nasira Javed Iqbal, in the presence of Chief Justice Jamali, pointed out that this important case that consumed a lot of time should have been decided by the bench. "In my view, the court had come under pressure and decided not to give any judgment. They preferred to pass the buck," Nasira Iqbal tells TNS.

She adds that it was time to make history, and "people were expecting a judgment".

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