Panama and its afterlife
By Brig (R) Samson Simon Sharaf
The writer is a political economist and a television anchorperson. He can be contacted at firstname.lastname@example.org
The Ides of March came and passed uneventfully.
No headlines could break the spell cast by the Panama Affairs.
The alive and politically conscientious part of the nation still awaits the decision.
According to admissions of the Supreme Court bench would be exemplary/ valid for many decades to come, or, will it like the past, be premised on the mindset of necessity? Views of political pundits and legal experts are divided.
Yet all agree on one point.
In Pakistan, anything is possible.
The questions and queries raised by the bench is no measure of the court’s mindset.
In the past many decisions turned out to be the opposite of what honourable judges were talking about.
An empirical study may give a drift of what could be expected.
Zulfiqar Ali Bhutto will never be exonerated from a mistrial.
Will the ‘Law of Necessity’ craftily subdued in Zafar Ali Shah Case revisit us? The bench will never sit to resolve whether the reassignment of Justice Ifthikhar Chaudary was legal or not; nor ever decide the case of once PCO judges dismissing twice PCO judges or others who were not PCO judges.
After all, Justice Dogar a PCO Chief Justice, retired honourably to pave way for another PCO judge Justice Chaudary’s reappointment without due process.
If the Asghar Khan Case that gathered dust for many years could briefly come to life and again go into hibernation, anything is possible.
If the apex court of the country cannot convince itself to determine what is effectively ‘prejudice to its decisions’ how can it be expected to act on similar issues of public interests? Asghar Khan Case, related to funding of political parties by the intelligence establishment against Pakistan People’s Parties, now jeers at the judiciary and executive.
In its prime, it was the biggest political scandal, but the nation has now forgotten it.
And finally, it is the honourable courts that closed all inquests into the Hudaibya Papers Mill case (the linchpin of money laundering) and not the National Accountability Bureau.
Most legal experts feel that once the ownership of properties in Panama case was determined, it was a matter of days for the Jamali Bench to announce its decision.
It did not and passed the buck.
The bench was allowed to lapse due to the retirement of Chief Justice.
These experts still maintain that the present bench has unnecessarily dragged on for too long.
In the public interest litigation, it never framed Questions of Law yet kept raising new questions.
The focus was never on issues in quest.
According to Aitezaz Ahsan, ‘Pakistan mein siraf faislay mehfooz hain’, (in Pakistan, only the judgments of the courts are reserved or safe).
Pakistan People’s Party speaks from its long experience of courts which hindsight suggests, wrong end of justice.
From a researcher’s point of view, the long delay by the Panama Bench could only be for two reasons.
First, if past is precedent, the bench is caught in a catch 22.
Courts in the past have always exonerated Nawaz Sharif.
Had it been PPP, the decision would have come much earlier.
Secondly, the bench feels that an affirmative decision could lead to an undetermined period of instability.
At stake is the exorbitantly expensive funding of CPEC, questions of Saudi Coalition and a death knell for Pakistan Muslim League (Nawaz).
However this is not for the court to determine.
Principles of Policy and Article 184 rests certain powers with the apex court.
Though Article 183 (4) talks of public interest can the court override it for supposed national and international interests?
The delay in the case suggests that some compromise floats on the surface.
But in human calculus and how the judges think, the unexpected could happen.
The most glaring case pertains to disqualification of Prime Minister Yusaf Raza Gilani whose decision was based on ‘Pity the Nation’.
Incidentally the same judge sits as the head of the bench and the poem would be weighing heavily on his conscience.
The carefully crafted rumours may help to make some insights.
Incidentally it happened on April fool’s Day.
One post doing rounds in social media suggested that the Judiciary and Army in wake of the Panama decision were about to take over the reins of the country.
Imran Khan’s meeting with the COAS gave a semblance of credibility.
A select segment of the country went ecstatic.
A contrarian rumour suggested that in wake of the Panama Bench verdict, the prime minister was contemplating dissolving the assemblies and calling snap elections.
With a popularity surge endorsed by IRI, PML-N would return in bigger numbers.
No one questioned that a prime minister under siege lacks moral authority to act in self-interest.
Both rumours have cogent legal lacunas.
So what are the probabilities?
Consistent with a recent judgment, the bench could take precedence from Yusaf Raza Gilani case, act as the juror and executive to disqualify Prime Minister Nawaz Sharif and his cohort.
Despite the fact that the question of Sadiq and Ameen would stand settled on propriety, the bench itself would investigate all frauds to recover looted money and punish the culprits.
To ensure transparency and preclude interference by a PML-N led Executive, the Supreme Court could set a precedence to invoke Article 190.
This means that the entire machinery of State Bank of Pakistan, Security and Exchange Commission, Federal Investigation Agency, Federal Board of Revenue and forensic auditors would suddenly come to life.
Logically, such a decision warrants detailed investigations and prosecutions of all individuals involved in the financial crimes.
Consequently, all major leaders of PML-N would be debarred from public office pending time consuming investigations and trials.
Will the bench uphold the ‘Rule of Law’ and resist extra judicial pressures? If it does, the decision will become an international judicial precedence.
There are suggestions that under national and international compulsions, the bench may avoid such a course.
Major international actors have stakes in National Reconciliation Order (NRO) 1 and 2.
If they have their way a NRO 3 ought to follow.
Now determine what weighs more: public, national or international interests?
The next probability is that the decision is split against the prime minister.
The question is, would the bench follow the precedent of a split court in Zulfiqar Ali Bhutto case.
Surely the burden of conscience would weigh heavily.
Would the buck stop at the disqualification of the prime minister? PML-N would continue to govern with a new prime minister, shadow all investigating agencies and influence subsequent courts as it did in disqualification of Justice Sajjad Ali Shah, Helicopter Reference and Hudaibya Paper Mill case.
The obvious outcome is that during the appeals, the prime minister would be exonerated.
The third probability is a ‘neither here nor there’ judgment on lines of the Nasir ul Mulk Election Commission.
It exonerated planned systematic rigging yet pointed at scores of defaults tantamount to rigging.
The bench like the Nasir ul Mulk Commission, by not framing Questions of Law, has avoided its inquisitorial jurisdiction and preached from the pulpit.
If this happens, it means a victory for PML-N.
The fallouts if the Panama Bench closes its doors cannot be determined.
But surely all mechanisms within the constitutional jurisdiction of the people of Pakistan would have been day.
This lawlessness will be exploited by anti-state elements.
Yet, whatever the distraction and notwithstanding the judgments, Panama will keep coming back.
Imran Khan’s first prayer to the Supreme Court of ‘Sadiq and Ameen’ under articles 62 and 63 will continue to haunt.
He could opt for a review or lose all confidence in the judicial system.
Yet he will distinguish himself as the only leader who stood out for pointing corruption and demanding rule of law.
Elections 2018 will not be an easy affair and Election Commission of Pakistan will be tested to its limits.