Daily Times

The Supreme Court has an eloquence to its judgments. The choice of words, the reference to legal provisions, and the high moral pedestal from which it declares the law, all create a majesty in the law, and indeed, in the judges who declare such law.

It is with such adoration and respect that I chose to peruse the Supreme Court’s recent judgment in relation to the review petitions of Mian Nawaz Sharif. Having seen the politics and accusations in regard to the whole panama verdict, it intrigued me as to how the Supreme Court would address and reply to the many grievances being raised by the Nawaz camp, as well as those doubts that have crept into the minds of the public.

To be frank, I was excited about reading the judgment. I had expected a great deal from it, and perhaps, somewhat unfairly. I had expected the Supreme Court to delve deep into the issue of unwithdrawn salaries being seen as assets (considering how controversial that decision in the Panama verdict had become), and expound upon the various legitimate and lawful accounting methods which clearly allow for such payables not to be declared as assets until actually received.

I had expected the Supreme Court to intimately and masterfully discuss these various accounting methods, and then to explain as to why Mian Nawaz Sharif could not have used any of those internationally accepted methods of declaration, or whether any local law specifically barred his choice of accounting method? I had also expected the Supreme Court to forcibly put forward as to whether Nawaz Sharif had in fact shown other receivable property as an ‘asset’. If such was the case, it would certainly indicate an intention to hide the receivable in question.

I had expected the Supreme Court to forcefully and courageously discuss threadbare as to whether Mian Nawaz Sharif had intentionally and dishonestly hid such assets, and what evidences or documentation showed him as being dishonest in relation to such omission.

It was expected that if the Supreme Court were to justify its superintending of trial proceedings on the basis of the subjugation of other institutions, it would do so by explaining and detailing the evidence on the basis of which it had been proved that the PM had orchestrated an “institutional capture, seizure and subjugation of all important institutions”.

I would have expected the Supreme Court, in all its majesty, to analyse, in the context of all his declared assets, how significant or meaningful an omission of this kind was. In essence, what benefit would Mian Nawaz Sharif have accrued by not declaring the amounts in question, and would the benefits have outweighed the negative impact of disqualification? Although not conclusive, consequential benefits may well serve as an indicator as to whether Nawaz Sharif would have been inclined towards such an omission, or whether it could logically not be anything other than an unintentional or negligent omission.

I had expected the Supreme Court to substantiate whether the Prime Minister is held to a higher standard than the rest, and in doing so, to explain as to which legal provision allowed the Supreme Court to use such an innovative standard when the sadiq and ameen disqualification provision talks about a standard of integrity for all members of national assembly, irrespective of him being a Prime Minister, leader of the Opposition, or a normal MNA?

I had expected that when the Supreme Court would justify dismissing the Prime Minister on grounds not even taken in the original petitions (the issue of unwithdrawn salaries) by saying that these are inquisitorial proceedings, then it would not shirk away from its responsibility to also analyse, on the same principle, as to whether such omission could have been an unintentional mistake or not. This analysis should have been undertaken even if the ground had not been taken earlier.

I had expected that if the Supreme Court were to justify its superintending of trial proceedings on the basis of the subjugation of other institutions, it would do so by explaining and detailing the evidence on the basis of which it had been proved that the PM had orchestrated an “institutional capture, seizure and subjugation of all important institutions”. And if this was in fact correct, then I would have wanted the Supreme Court to elucidate as to whether it would be justified to allow such compromised and subjugated institutions to investigate and prosecute other cases without any supervision or chaperoning? If not, then why were they allowed to do so?

I read this judgment, and I re-read it. But unfortunately, I wasn’t able to find answers to any of the questions or queries posed above. The review judgment was a great opportunity for our esteemed and honourable judges to talk to us, and explain why their ruling was on sound footing (although legally, they perhaps did not need to).

Practically, it could have been used not only as an opportunity to forcibly reply to the accusations of the Nawaz camp, but also for removing any doubts as to its legal virility. In relation to the first aspect, the honourable judges have certainly made their position crystal clear. In regard to the second part, amongst other things, clarity is certainly missing.

The writer is a litigation lawyer practising in Karachi. He can be reached at basil.nabi@gmail.com and tweets at @basilnabi

Published in Daily Times, November 12^th 2017.