A judgment to remember

The land mark judgment has been given by the Supreme Court of Pakistan on 20th April 2017, which is discrete enough as “not to send wrong signal” so that both, the petitioner and the respondents are celebrating with political naivety. In passing this judgment the rule of law has been the main consideration, because the honourable court is not a trial court and without going through the rigours of due process of law of evidence, it cannot pass the order, and therefore, disagreeing with the two dissenting judges, it says:

“The matter requires a factual inquiry which has to be undertaken by the statutory bodies set up under the law and the Constitution for the said purpose. Once the facts have been uncovered and evidence has been collected, the matters need to be placed before a Court of competent jurisdiction for trial in accordance with the law and in line with the rights guaranteed under Article 10A of the Constitution. It is only after such an exercise has been undertaken that a person found guilty can be convicted and visited with various penalties and punishments provided by the law and the Constitution.” (Page 438 of the Judgment)

Therefore the honourable Court has ordered the formation of the Joint Investigation Team (JIT), under the ‘Interior Minister’, because the respondents have failed to clarify their position:

• The entire story has been woven around two letters and two affidavits, the contents of which we have found to be dubious and hard to believe. (Para 39)

• No proof, paper trail or bank records of the same have been furnished either and the learned counsel appearing on behalf of Respondent No. 7 has conveniently stated that no record, documentation or evidence is available on account of the fact that most of the persons directly involved in these transactions have passed away. (Para 46)

• However, other than feigning complete ignorance we have not received any satisfactory or even remotely convincing response. It is also noticeable that by and large the Respondents have not denied the information and date coming to light through what is commonly known as Panama Leaks. (Para 48)

• Every possible effort was made and every conceivable device was adopted to withhold and conceal information and documents which were necessary to answer the numerous questions which have been raised regarding probity, transparency and legitimacy of the transactions in question by the highest Court of the country. (Para 51)

• There is a host of material, crucial and critical questions which have remained unaddressed, unresolved and unanswered. (Para 51)

• This was not done and an opportunity squandered for reasons best known to the Respondents. Instead refuge was taken behind vague, ambiguous, fuzzy and hyper technical pleas. (Para 88)

• There are serious allegations of money laundering, corruption and possession of assets beyond known means and or acquiring assets, the sources of which have not been explained. (Para 85)

• For a person who holds the highest elected office of the land, it was necessary and incumbent upon Respondent No. 1 to place all information, documents and record before this Court to clear his own position and that of the members of his family. (Para 88)

The honourable Court therefore observes that:

• The contradictory, discrepant and divergent explanations offered to us by the Respondents, including Respondent no. 1 have been found by us to be absurd, fanciful and ludicrous. (Para 51)

• The most material question that arises from the above discussion is whether the findings recorded above are enough for us to declare that Respondent No. 1 is not Truthful and Ameen and then proceed to disqualify him from being a member of the National Assembly. (Para 52)

• This can only be recorded by an Accountability Court under the NAO, after a proper trial, recording evidence and granting due process rights guaranteed by the Constitution to the accused. (Para 58)

• The answers to these questions cannot be found without a thorough probe and investigation. On the basis of the outcome of such exercise, we would be in a better position to decide if there is sufficient material available before us to exercise jurisdiction under Article 184(3) of the Constitution. (Para 68)

The honourable Court therefore “found it imperative to pass orders and take steps to ensure that the true facts should come before the people of Pakistan who have a fundamental right to be governed in accordance with law, by those who fulfill the requirements of the Constitution and the law.” And “thus there is sufficient prima facie evidence to conclude that the Prime Minister and his two sons may be guilty and therefore a JIT should compile conclusive evidence of guilt or otherwise.”

The honourable Court, therefore gave the responsibility to the JIT under the Interior Minister and not a ‘Session Court,’ despite serious condemnation of some members of the JIT, such as:

• By appointment of their handpicked officers (by the Government) in complete disregard of merit, honesty and integrity to head such institutions, these cronies owe their loyalty to their masters to whom they are beholden and do not feel any sense of allegiance, loyalty or fidelity to the country or its people. (Para 83)

• The complete and utter apathy shown by the State functionaries/Departments in this matter besides being shocking has raised many questions and the constant foot dragging on their part shows complete and utter lack of interest and a desire to sweep the matters under the carpet.(Para 18)

• The FBR had gone into deep slumber and failed to initiate even the preliminary steps towards ascertaining the identities and other antecedents of the persons named in the Panama Papers, let alone taking any action against them.(Para 17)

• After hearing the Chairman FBR, we are constrained to express our dissatisfaction and extreme disappointment on the mode and manner in which the premier taxation authority of the country has dealt with the matter. (Para 22)

Let us hope and pray that the honourable Court finds the truth for conviction or otherwise, which “can only be recorded by Accountability Court under the NAO, after a proper trial, recording evidence and granting due process rights guaranteed by the Constitution to the accused.” (Para 58).

The process has started and In the meantime, the opposition parties, as well as the government should exercise their minds to frame their political strategy to follow, after the judgment, which is expected in two and a half months time, than to waste their time and energies on purposeless agitations and unbecoming verbal duals on the electronic media. The opposition appears to be in the kind of undue haste I found them in 1977 and 1998 to topple the sitting governments, courtesy the ‘Umpires’. The politicians better follow the democratic course under correction by the Supreme Court through judicial dispensation and not the “Law of Necessity”. Times have changed. Political attitude must also change with the time.

Gen (r) Mirza Aslam Beg

The writer is a former COAS, Pakistan. He can be reached at friendsfoundation@live.co.uk

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