The five-member bench of the Supreme Court gave its judgment in Panama Leaks case on April 20. Three of the judges — Justice Ejaz Afzal, Justice Sheikh Azmat Saeed and Justice Ijazul Hasan — considered that the material placed before them is not sufficient to grant the petitioners the relief of disqualification of the Prime Minister on the basis of alleged tax evasion or non-disclosure of assets or purportedly accumulating assets disproportionate to his legitimate sources of income. But they considered the material enough to raise probable suspicions against the ‘first family’ of the country, and hence worth a careful investigation.
Justice Asif Saeed Khosa and Justice Gulzar wrote dissenting opinions, but the majority judgment called on the formation of a Joint Investigation Team (JIT) vested with extensive powers to summon and investigate any person acquainted with the facts of the case. Accordingly, the PM, his sons and daughter, inter alia, appeared before the JIT when so required.
While the report of the JIT is likely to be produced before the Supreme Court on July 10, various questions need to be addressed in the light of law amidst a chaotic diversity of legal opinions peddled through print and electronic media.
The majority judgment made it clear that a special implementation bench will be formed for the constitution of JIT and consideration of its report. Thus, there are two options: a) The three-member [Implementation] bench will consider the report and make a decision or b) It will request the Chief Justice to form a new bench to hear the matter.
What is clearly ruled out is the revival of the original five-member bench, as is believed by some legal pundits. The implication of this opinion is that if one of the three judges [who gave majority judgment] decides to disqualify the PM, Justice Khosa’s dissenting opinion supported by Justice Gulzar will become a majority judgment. This is not supported by precedent or any sound interpretation of the majority judgment.
There are two questions that bear on the disqualification of the PM.
1) Does the PM have any real or beneficial interest in Mayfair properties or any other property not disclosed by him as required under the Representation of the People Act 1976?
2) a. Was Maryam Nawaz a beneficial owner of London Flats? b. Was Maryam Nawaz a dependant at the time of nomination papers filed by Nawaz Sharif for general elections of 2013 and hence the non-disclosure of her assets renders him liable to disqualification? [The two questions (a) and (b) need to be cumulatively established.]
If either question (1) or (2) is established through admitted or irrefutable evidence, the Supreme Court can declare the disqualification of the PM on the basis of the said evidence.
Now the question is if a failure to prove money trail or account for assets can trigger disqualification. The answer is clearly in the negative, because the majority judgment has made it clear that articles 62, 63 of the constitution and the Representation of the People Act 1979 do not require an explanation on the source of funds. That needs to be established under the Accountability Laws of the country i.e. National Accountability Bureau Ordinance 1999. Only if an accountability court, after recording, examining evidence, affording the accused the opportunity to be confronted the evidence against him, gives a judgment against the accused and it attains finality, then the disqualification process can be triggered through the election tribunal or the superior courts.
While the report of the JIT is likely to be produced before the SC on July 10, various questions need to be addressed within the context of the law. Especially given the chaotic diversity of legal opinions peddled through print and electronic media
And then there is the most important question — how likely is the disqualification of the PM? It is highly unlikely. The Supreme Court itself has the power to record evidence under Article 184 (3), only when voluminous records or intricate and complications questions of fact are not involved.
Coupling the above with the fact that the JIT focused on investigating various individuals and recording their statements, the production of admitted or irrefutable evidence is highly unlikely. Such method of investigation can only help JIT point out certain omissions or discrepancies between different accounts, but no irrefutable determination of facts is possible.
The Supreme Court exercising its power under Article 184 (3) read with Article 187 of the Constitution, can order the initiation of criminal proceedings against the PM or any of his family member(s) before the Accountability Court.
All three judges have referred to the established jurisprudence regarding Article 184 (3) of the constitution and have stated that disqualification of a member of the parliament is not possible on mere allegation or surmises. The Supreme Court expressly stated that they cannot reinvent the rules of law merely because the respondent happens to be the prime minister. Hence, political difficulties may increase for the government after filing of reference with the Accountability Court but the PM’s disqualification by the Supreme Court is not on the cards.
The writer is a Rhodes Scholar and holds the degree of Bachelor of Civil Law (BCL) from University of Oxford. He currently works in the Civil Service of Pakistan Email: [email protected]
Published in Daily Times, July 9th , 2017.