The brief summary of the judgement is:
-- Two honourable senior judges have declared that the Prime Minister should be disqualified in terms of Article 62(1)(f) of the Constitution.
-- The remaining three judges, after rejecting the defence of Prime Minister and others ordered further probe through a joint investigation team (JIT), under the supervision of the apex court.
-- Even in majority view (order of the court), not a single judge has acquitted Nawaz Sharif.
-- No judge has dismissed the petitions being without merit.
Saad Rasool, a young lawyer having done his Masters in Constitutional Law from Harvard Law School, in his op-ed [A judgement to remember? The Nation, April 23, 2017] has raised the following pertinent questions and made some interesting observations:
-- "In any case, one has to wonder, would the majority have ruled as it did, if the person in question was not Nawaz Sharif?
-- Regardless, now that the JIT has been formed, with specific TORs, a number of questions arise. Can the JIT be expected to work independently, while investigating the sitting PM? If NAB, FIA and other regulators are not performing their job (as observed in the judgement itself) why have they been included in the JIT? Also, why have intelligence agencies been entrusted with an 'investigation'? Even so, why has the civilian intelligence agency (IB) not been included in the JIT?
-- Also, can the PM and his family be allowed to further improve upon their "not believable" story? If so, how will this 'improvement' be seen through the lens of law? Do the courts not convict people, every day, when they improve their defence in criminal cases?
-- Can additional documents or foreign letter be submitted before the JIT, when the same were not given to the court? Did the PM, and his family, not assure the court that "every" documentary evidence, in their possession, has already been placed on the record?
-- Importantly, per the TOR, the JIT is supposed to investigate issues such as whether the Qatari letters are "a myth or reality". Can the JIT declare these letters, and their content, to be the truth, even after judges of the Supreme Court have already rejected their veracity? Can the JIT sit in appeal over issues that have already been decided by Justice Asif Khosa and Justice Gulzar Ahmed?
-- And what will happen in 60 days? Will this probe be concluded, or is this going to become a repeat of the Arsalan Iftikhar or Saleem Shehzad investigations?"
It is worthwhile to remember that on December 9, 2016, a five-member bench of Supreme Court ordered fresh proceedings before a new bench in the Panama case. As after the announcement of judgement on that day also there was mood of jubilation in the camp of the ruling party. The atmosphere of gloom in Tehreek-e-Insaf (PTI) after the first nine hearings and in the wake of judgement after 26 days of herculean day-to-day hearings is obvious. They have so far failed to get Nawaz Sharif ousted through even the "legal process" (sic).
After reading the full judgement, the self-assumed claim of "victory" by Pakistan Muslim League-Nawaz [PML(N)] proved short lived. PTI also realised that battles of words in media are different from actual case proceedings in courts where one has to establish one's case relying on law and incontrovertible evidence. The dilettante approach by PTI in presenting the evidence and arguing the case and self-assumed expectation of positive outcome has been taken care of honourable Justice Sheikh Azmat Saeed as under:
"However, on 09.12.2016 Naeem Bokhari, learned counsel for the Petitioner in Constitution Petition No 29 of 2016 on instructions, in a rather belligerent tone, stated that a Commission by a Judge of this Court was not acceptable and the matter be decided by this Court on the existing record. The relief of the opposite side could barely be concealed. One of the unsolved mysteries of the case is this sudden change of heart by the Petitioners and more importantly what persuaded the Petitioners to believe that a definitive finding could be given by this Court on the photocopies of disputed unsigned documents not coming from a proper custody or Respondent No 1 could be disqualified on mere allegations emanating out of the Panama Papers".
The act of Nawaz Sharif and other respondents to purportedly withhold the relevant documents, concealing facts and making contradictory statements also annoyed the honourable judges and following observations to this effect are worth reading:
Per Justice Asif Saeed Khan Khosa [para78]: "Although it had specifically and repeatedly been said by respondent No 1 on the floor of the National Assembly in the above mentioned speech that the entire record relevant to the setting up and sale of the factories in Dubai and Jeddah was available and would be produced whenever required yet when this Court required Mr. Salman Aslam Butt, Sr. ASC, the then learned counsel for respondent No 1, on December 07, 2016 to produce or show the said record he simply stated that no such record existed or was available and that the statement made by respondent No 1 in the National Assembly in that respect was merely a "political statement"!
In his judgement [Para 83], the honourable Justice Asif Saeed Khan Khosa reproduced a chart highlighting "the serious contradictions in the stands taken by respondent No 1 and his immediate family from time to time in the matter of acquisition of the relevant four properties in London" and noted that such "contradictions may reflect upon their lack of honesty on the issue".
Per Justice Gulzar Ahmed [para 11]: This anomaly of increase in the number of shares of the two companies is not explained. Further, I find that the Bearer Share Certificates of the two companies separately mentioned authorised capital of each of the company to be US $50,000 divided into 50,000 shares of par value US $1 each. No record is made available on the basis of which it can be ascertained as to what number of shares in each of the company were issued either bearer or registered. The Bearer Share Certificate of Nescoll Limited is dated 29.04.1993 while that of Nielsen Enterprises Limited is dated 22.01.1994 Mian Muhammad Nawaz Sharif and his family does not claim that these Bearer Share Certificates were in their custody from their respective dates.
He when called upon by the highest Court of the country to explain, what Mian Muhammad Nawaz Sharif chose was to remain silent and gave bare statement that he is not owner of the four London Flats and of the two offshore companies. This evasive attitude of Mian Muhammad Nawaz Sharif, more so before the highest Court of the country, to me, did not appear to be justified or bonafide rather its purpose appears to throw the Court in altogether a dark alley where it is left groping without realising that this very act of his will cast a substantial shadow upon him, more so when the Court is considering the very question of his being Honest and Ameen in holding office of the Member of National Assembly and the Prime Minister of Pakistan.
(To be continued)
(The writers, lawyers and partners in Huzaima, Ikram & Ijaz, are Adjunct Faculty at Lahore University of Management Sciences)
Copyright Business Recorder, 2017