This dilemma of creating and recreating, as they call it, a judicial commission, has put the common people of this country into doldrums. Precisely, the commission is required to be constituted for investigating the leaked information/documentation pertaining to the use of tax haven by some top politicians as well as business tycoons of our country ostensibly to avoid payment of taxes on their wealth. To constitute an ‘unbiased’ commission, as per the general understanding, for investigating the issue of the Panama leaks, it has to be recommended by the ruling party and be accepted by the opposition parties, or vice versa, and the persons being appointed as members of the commission should have no reservation on their being part of the commission. Although this triangular consensus is being considered as fundamental for probing into the issue of the Panama leaks, however, it has not been agreed upon so far. When the ruling party agrees the opposition disagrees, and vice versa; and if both of them agree, the person who is being recommended refuses to lead the commission.
So far, several recommendations have been made either by the ruling party or the opposition, and there has been no positive outcome. Earlier, the former Chief Justice of Pakistan Nasir-ul-Mulk, Mr Tasadduq Jillani, and former judges of the Supreme Court, Mr Sair Ali and Mr Tanveer Ahmed Khan had refused to lead the commission. Recently, Prime Minister Nawaz Sharif announced that Justice (Retd) Sarmad Jalal Usmani would head the commission, a suggestion that was vehemently challenged and opposed by the Pakistan Tehreek-e-Insaf. It has been reported that government has approached five retired judges, who have shown reluctance to be involved in this issue, and have, therefore, refused to head
the commission.
In this entire scenario of selecting and de-selecting someone to head the proposed judicial commission, we, as a nation to whom these elected representatives are accountable, have completely ignored the fact that neither the ruling party nor the opposing parties should be part of the selection of a commission that would inquire into the information revealed by the Panama leaks. According to the reports floating in media, the leading members of both the ruling party as well as one of the opposition parties have been named in the leaked information for owning and managing different companies in the Virgin Islands for avoiding the taxes.
However, another aspect that needs consideration is that the august Supreme Court has also refused to constitute the commission on the grounds that, firstly, they are already short of judges required for the bench, and, secondly, what is required to be done in this situation is not a judge’s job. Moreover, Chief Justice of Pakistan (CJP) Anwar Zaheer Jamali, while hearing a case, have said that although the judiciary has been asked to constitute a commission or to take suo motu action, it is the executive’s domain, and not the judiciary’s job, since the issue involves investigation that is not a function of the judiciary.
In the backdrop of these developments, it seems that the proposed commission has become ‘non-commissioned’ (non-commissioned in terms of common military ranks, someone who is considered a ‘sub-officer’), instead of it being a ‘commissioned’ commission. And that it would be at liberty to get its shoes dirty in the issue of inquiring into the information released by the Panama leaks without any pressure from any political party.
Another thing that requires focus — as per the observations of the honourable CJP, as well as the Pakistan Commissions of Inquiry Act 1956 — is that the constitution of a commission falls within the federal government’s and, therefore, the executive’s domain. It is baffling that there is not a single executive institution that is competent (read: unshakable) enough to probe into this issue, instead of constituting a separate commission. Not even a single institution exists that does not simulate the influence of the federal government, or for that matter, the provincial government, and therefore, has the unhampered jurisdiction to inquire into such matters that pertains to the incumbent prime minister or his family. This is the position where we are in dire need to establish, and make the institutions like the National Accountability Bureau (NAB) independent, whereas they should have the authority and jurisdiction to dig into matters like the ones pertaining to the alleged evasion of taxes by some of the wealthiest people of Pakistan. The preamble of the National Accountability Ordinance 1999 specifically provides that the purpose of the legislation is to administer effective measures for “detection, investigation, prosecution and speedy disposal of cases involving corruption, corrupt practices, misuse or abuse of power or authority, misappropriation of property, taking of kickbacks, commissions.”
In this ruckus, the more pertinent questions are: are we, as a nation, even interested in getting this issue investigated? Are we ready to make our representatives accountable for all the wealth they have stashed in offshore companies? Do we need an answer to the question why all their assets were not declared when applications were submitted to contest the elections? The answers to all these questions are confusing, like the way the nation is confused about these issues.
I, like many others, am confused about one thing; why instead of making a commission are we unable to ask the NAB to commence investigations and proceed with the matter?
The writer is a Lahore-based lawyer based in Lahore. He can be reached at [email protected] or on Twitter at @haseebajaved