Daily Times

Lahore: Legal experts have expressed reservations over the procedure adopted by the Supreme Court (SC) implementation bench for the establishment of the Joint Investigation Team (JIT) that is likely to concludeits probe into allegations of money laundering against Prime Minister Nawaz Sharif’s family this week.

They have noted that though lawful and well within its constitutional authority, the inquiries made by the implementation bench into credentials of nominees exceeded the mandate handed down to it in the April 20 verdict. Alongside, the procedure adopted by the bench was also inconsistent with the Apex court’s own directions -in earlier relevant judgements -that had soughta rule-based, transparent and objectiveprocedure for promotions or appointments to high offices in the federal government.

JIT’s composition and April 20th verdict: Lawyer Asad Jamal says that the bench had disregarded the process laid out in the April 20 judgement for nomination of memberswhen it went about picking and choosing members on its own. The court should have written it down in its judgement that it will choose whoever it wanted to.

The chronology of events available to us from media reports suggests that although the SC had initially left the matter of nominations to respective institutions, but sometime during April 20th and 27th, the honourable SC judges had a change of hearts, notes lawyer Umer Gillani.

“It appears that someone subsequently convinced the judges that the matter could not be left to chance. Instead, it was absolutely necessary to have Bilal Rasool (SECP), Amiz Aziz (SBP) and Irfan Mangi (NAB) on the JIT. Thereafter, judges went out of their way to ensure that this happens,” he says.

Gillani says it is noteworthy that in addition to these three officers, two had been nominated by military intelligence agencies. “That leaves us with only one member [FIA’s nominee Wajid Zia] whose nomination to the JIT seems beyond reproach,” he says.

Lawyer Jahanzeb Sukhera says the situation is best explained with reference to the SC’s constitutional powers.

“The Constitution of Pakistan, 1973, gives the Apex court wide powers to issue directions, orders, and decrees for’complete justice’. Often times, the court has read this to mean that in pursuit of complete justice it is not restrained by formalities of black letter law,” he says. Furthermore, he says, the Constitution requires executive and judicial authorities to act in aid of the Supreme Court. And in light of these circumstances, it was well within the authority of the Supreme Court to constitute a commission or JIT by deciding who to be placedon it.

JIT composition in view of earlier SC judgements: Jamal notes that the procedure adopted in JIT’s composition was in contradiction to past judgements where the importance of transparency and objectivity had been stressedin matters of promotions or appointments to high executive offices.

The criteria laid out for the government was not followed by the implementation bench when it dismissed nominations submitted by the Securities and Exchange omissionn of Pakistan (SECP), State Bank of Pakistan(SBP) and National Accountability Bureau (NAB) without presenting to the public any evidence to substantiate concerns regarding credentials of the nominees.

“The court must have chosen officers on some merits, but it would have been in the interest of transparency to share the reasons with the public,” he says.

Gillani notes that there is a considerable body of jurisprudence in Pakistan which stipulates that all appointments to official posts must be based on objective criteria. So, for instance, in March 2017, the SC announced a short order whose detailed version – released in April and available on the SCP website – states that when the Prime Minister decides to promote a certain batch senior civil servants, the decision must be based on publically-disclosed facts and reasoning which is sound enough to stand scrutiny in open Court. “The Supreme Court’s May 5 order, appointing the JIT, however, does not disclose reasons why the judges selected these six persons out of the several-hundred strong list in front of them. The Court does not even attempt to justify its decision. Unfortunately, from the facts of the case we can’t rule out the possibility of manipulation by intelligence agencies,” he says.

For Sukhera, the situation in Panama Papers case is distinguishable from the government deciding on who to appoint to public office, or who to promote in the bureaucracy. “Federal and provincial governments are not empowered with the kind of discretion that the Supreme Court enjoys,” he says. While there may be different opinions as to the propriety of the court directing the SC registrar to communicate with the institutions concerned, it must be noted that there is no applicable legal restriction that bars the court from doing so. Particularly, when the constitution requires all executive and judicial authorities, such as the registrar, to’act in aid’ of the Supreme Court.

Was proceeding under Article 184 (3) the best decision?: Jamal stresses that accountability of public representatives has to be of utmost importance, but the matter of JIT investigations in the Panama Papers case remains debatable.Canthe court – under Article 184(3) – decide to act as an agency supervising investigation while it shalllater also be judging those accused?”The underlying principle for such proceedingshas to be consistently applicable. If what is happening in the Panama Papers case can’t be followed in all instances of similar nature as a matter of principle then we’re in a mess,” he says. “True, our institutions of accountability have failed but then that is our collective failure,” he adds. Jamal says that there’s a possibility that with the passage of time we may realise that proceeding in the matter concerned under Article 184(3) was not the best decision.

For him, the bigger question concerns accountability of public office holders, including judges. And the institutional mechanism for ensuring accountability of judges is through the Supreme Judicial Council, which remains ineffective in Pakistan. “There’s a failure there too. Should we then opt for a path for judicial accountability which may not stand the test of time?” he asks. There is no social accountability of judges either. “We don’t have a widespread tradition of critical evaluation of judgements – either within the legal fraternity or the academia. The judiciary has insulated itself from the society and other institutions of the state,” he notes.

Published in Daily Times, July 3^rd, 2017.