A troubling verdict
The Supreme Court could have done better, and used the JIT report to form a strong ground for the disqualification
The writer is an assistant professor at the law and accounting department of the Institute of Business Administration
All the efforts to find the money trail, unearth the hidden wealth and the forgery gone to waste. The only thing taken out of the 250-odd page Joint Investigation Team (JIT) report was the accrued salary of Nawaz Sharif from the company Capital FZE which was construed as an undisclosed asset. Ironically, the said Capital FZE was not something unearthed by the JIT, the Supreme Court already knew about it (as mentioned on page 538 of the April order) and it is something, as claimed by the PML-N, disclosed in the nomination papers of Mr Sharif.
In hindsight forming a JIT was a futile exercise. Why did the majority justices (Justice Ejaz Afzal Khan, Justice Azmat Saeed and Justice Ijazul Ahsan) got into matters of intricate facts and ordered a JIT, when they had no intention to make full use of its report in their final order? Here the approach of the minority justice is commendable. They got it right in the first instance. No JIT was required.
The reason why Justice Asif Khosa and Justice Gulzar Ahmed didn’t propose a JIT unlike the majority judges was because they didn’t venture into the questions of facts raised around the money trail. Justice Khosa on pages 64 and 65 of the judgments writes as follows:
“It ought not to be lost sight of that it is not the property in London which is in issue before this Court but what is at issue is respondent No.1’s honesty for the purposes of a disqualification under Article 62(1)(f) of the Constitution. Therefore, in order to attend to the said core issue I have decided to keep aside the material produced by the petitioners regarding the four properties in London and to take into consideration primarily the explanations offered and the material supplied by respondent No.1 and his children in order to see whether their explanations vis-à-vis acquisition of the said properties are on the face of it honest or not. This approach adopted by me leaves me with no disputed or intricate questions of fact on the issue and focuses solely on the issue of honesty of respondent No.1 with reference to the explanations advanced by him and his family only. Respondent No.1 and his family cannot claim that their explanations offered on the issue are themselves disputed or intricate and this Court cannot even look at them!”
In Justice Khosa’s opinion, it will be a ‘disaster’ if the court stops short of attending to the issue because it involves some disputed and intricate questions of fact. On page 64 of the judgment, Justice Khosa writes:
“…if this Court stops short of attending to the issue merely because it involves some disputed or intricate questions of fact then the message being sent would be that if a powerful and experienced prime minister of the country/chief executive of the federation appoints his loyalists as heads of all the relevant institutions in the country which can inquire into or investigate the allegations of corruption, etc, against such prime minister/chief executive of the federation then a brazen blocking of such inquiry or investigation by such loyalists would practically render the prime minister/chief executive of the federation immune from touchability or accountability and that surely would be nothing short of a disaster.”
The order announced on July 28th was really disappointing. The Supreme Court could have done much better, could have used the JIT report to form a strong ground for the disqualification of Nawaz Sharif. The precedent set will lead to floodgates being opened, which will burden our judiciary more than ever. Testing times for the Supreme Court ahead, we have not seen the last of the Panama Papers.
Published in The Express Tribune, July 31st, 2017.
In hindsight forming a JIT was a futile exercise. Why did the majority justices (Justice Ejaz Afzal Khan, Justice Azmat Saeed and Justice Ijazul Ahsan) got into matters of intricate facts and ordered a JIT, when they had no intention to make full use of its report in their final order? Here the approach of the minority justice is commendable. They got it right in the first instance. No JIT was required.
The reason why Justice Asif Khosa and Justice Gulzar Ahmed didn’t propose a JIT unlike the majority judges was because they didn’t venture into the questions of facts raised around the money trail. Justice Khosa on pages 64 and 65 of the judgments writes as follows:
“It ought not to be lost sight of that it is not the property in London which is in issue before this Court but what is at issue is respondent No.1’s honesty for the purposes of a disqualification under Article 62(1)(f) of the Constitution. Therefore, in order to attend to the said core issue I have decided to keep aside the material produced by the petitioners regarding the four properties in London and to take into consideration primarily the explanations offered and the material supplied by respondent No.1 and his children in order to see whether their explanations vis-à-vis acquisition of the said properties are on the face of it honest or not. This approach adopted by me leaves me with no disputed or intricate questions of fact on the issue and focuses solely on the issue of honesty of respondent No.1 with reference to the explanations advanced by him and his family only. Respondent No.1 and his family cannot claim that their explanations offered on the issue are themselves disputed or intricate and this Court cannot even look at them!”
In Justice Khosa’s opinion, it will be a ‘disaster’ if the court stops short of attending to the issue because it involves some disputed and intricate questions of fact. On page 64 of the judgment, Justice Khosa writes:
“…if this Court stops short of attending to the issue merely because it involves some disputed or intricate questions of fact then the message being sent would be that if a powerful and experienced prime minister of the country/chief executive of the federation appoints his loyalists as heads of all the relevant institutions in the country which can inquire into or investigate the allegations of corruption, etc, against such prime minister/chief executive of the federation then a brazen blocking of such inquiry or investigation by such loyalists would practically render the prime minister/chief executive of the federation immune from touchability or accountability and that surely would be nothing short of a disaster.”
The order announced on July 28th was really disappointing. The Supreme Court could have done much better, could have used the JIT report to form a strong ground for the disqualification of Nawaz Sharif. The precedent set will lead to floodgates being opened, which will burden our judiciary more than ever. Testing times for the Supreme Court ahead, we have not seen the last of the Panama Papers.
Published in The Express Tribune, July 31st, 2017.