The Supreme Court judgment in the Panama case has attracted mixed reactions—some uncalled for, others ill-conceived and unfair and a very few based on genuine understanding of the subject. Even some learned members of the media went to the extent of questioning the collective wisdom and sagacity (and the understanding of law and polity) of the judges in disqualifying the prime minister on “troublingly narrow grounds”. The ground reality, however, is that Mr Nawaz Sharif along with his cabinet has been sent home packing and the positive outcome is that an elected democratic dispensation has been allowed to continue with a smooth transition of power.
Since all judicial pronouncements are subject to critical appreciation, a difference of opinion and a debate on the Panama case judgments of April 21 and July 28, having political overtones and implications, should be taken as a welcome development. But it is regrettable if a discourse and reasoning based on political setback or a personal loss in terms of power and authority, comes to the fore and pervades the political atmosphere.
Let us make it clear at the outset that the Supreme Court did not take up the case on its own initiative. It were the three honourable members of Parliament heading three different political parties who moved the apex court. Why didn’t they agitate the issue in Parliament to compel the relevant agencies of government to look into the Panama paper scam? Was it due to a lack of confidence in the state machinery But why this trust deficit? There is some inherent problem in the democratic set-up or the way it is tailored from time to time that it always fails to survive internal jerks and convulsions, leaving open space for the army or the judiciary either to arbitrate, intervene or to take over? (This is not stated here to justify army takeovers in the past by its adventurous chiefs). We can cite a number of cases when the judiciary was attracted to intervene to help resolve administrative issues or problems borne of poor governance. Most of the suo motu initiatives by the superior judiciary in the recent past were necessitated by the failure of or inaction by the administrative machinery under the respective governments in the provinces. It is regrettable that such issues, disputes, problems, etc. land directly in the high courts or the apex court for judicial arbitration and disposal. This keeps happening either due to the unwillingness or inability of the relevant institutions or departments to deal with the problems or due to a complete erosion of trust and confidence people should have in these administrative arms and wings of the government.
The argument that the apex court, by disqualifying a prime minister has set a “dangerous precedent”, is neither plausible nor convincing. A perusal of the hearings in the initial days and a careful and detached reading of the two judgments (of April 21 and July 28) would reveal that the court would have preferred this case to come through the relevant state institutions such as the National Accountability Bureau, the Federal Investigation Agency, the Federal Board of Revenue, the State Bank of Pakistan or the Security and Exchange Commission of Pakistan. One of the honourable judges observed in the April 21 judgment that a Joint Investigation Team (JIT) had to be formed after NAB and its chief expressed their unwillingness or inability to take up or look into cases relating to the prime minister and his family.
Why did the apex court go on to constitute the JIT? The learned judges referred to para 19 of the April 21 judgment, which reads: “Yes, the officers at the peak of NAB and FIA may not cast their prying eye on the misdeeds and lay their arresting hands on the shoulders of the elites on account of their being amenable to the influence of the latter or because of their being beholden to the persons calling the shots in the matters of their appointment, posting and transfer.”
The relevant paragraph of July 28 judgment reads: “…Mian Muhammad Nawaz Sharif is not honest in terms of Section 99(f) of ROPA and Article 62(1)(f) of the Constitution of the Islamic Republic of Pakistan, 1973, therefore he is disqualified to be a Member of the Majlis-e-Shoora (Parliament).” Apparently the apex court reached this conclusion on the basis of an admission made by Nawaz Sharif, through his counsel, about his employment and his salary which he claimed to have never withdrawn and his failure to declare/disclose this fact while filing his nomination papers for the 2013 elections.
As regards the controversy about the receivable/un-withdrawn salary being an asset, the apex court in para 13 of its judgment observed that “...a salary not withdrawn would nevertheless be receivable and as such would constitute an asset for all legal and practical purposes. When it is an asset for all legal and practical purposes, it was required to be disclosed by respondent No. 1 (Nawaz Sharif) in his nomination papers in terms of Section 12(2) of the ROPA”. The judgment further reads that, “...the statement that he did not withdraw the salary would not prevent the un-withdrawn salary from being receivable hence an asset. When the un-withdrawn salary as being receivable is an asset it was required to be disclosed by respondent No. 1 (Nawaz Sharif) in his nomination papers for the elections of 2013 in terms of the section 12(2)(f) of the ROPA. Where respondent No. 1 (Nawaz Sharif) did not disclose his aforesaid assets, it would amount to furnishing a false declaration on solemn affirmation in violation of the law mentioned above, therefore, he is not honest in terms of section 99(1)(f) of the ROPA and Article 62(1)(f) of the Constitution of the Islamic Republic of Pakistan.”
What may be of greater importance (or graver consequences) is the Supreme Court ordering NAB to file seven references against Nawaz Sharif and his family members and NAB deciding to file an appeal in the apex court to re-open the Hudaibiya case which also involves Shahbaz Sharif, the Pakistan Muslim League-N choice for future prime minister. There will, therefore, be much more to add value to already prevailing uncertainty in the political sphere in the days to come.
The writer is a veteran journalist based in Karachi
Since all judicial pronouncements are subject to critical appreciation, a difference of opinion and a debate on the Panama case judgments of April 21 and July 28, having political overtones and implications, should be taken as a welcome development. But it is regrettable if a discourse and reasoning based on political setback or a personal loss in terms of power and authority, comes to the fore and pervades the political atmosphere.
It is regrettable that such issues land directly in court for judicial arbitration. This keeps happening either due to the unwillingness or inability of the institutions to deal with the problems or due to a complete erosion of trust people should have in the government
Let us make it clear at the outset that the Supreme Court did not take up the case on its own initiative. It were the three honourable members of Parliament heading three different political parties who moved the apex court. Why didn’t they agitate the issue in Parliament to compel the relevant agencies of government to look into the Panama paper scam? Was it due to a lack of confidence in the state machinery But why this trust deficit? There is some inherent problem in the democratic set-up or the way it is tailored from time to time that it always fails to survive internal jerks and convulsions, leaving open space for the army or the judiciary either to arbitrate, intervene or to take over? (This is not stated here to justify army takeovers in the past by its adventurous chiefs). We can cite a number of cases when the judiciary was attracted to intervene to help resolve administrative issues or problems borne of poor governance. Most of the suo motu initiatives by the superior judiciary in the recent past were necessitated by the failure of or inaction by the administrative machinery under the respective governments in the provinces. It is regrettable that such issues, disputes, problems, etc. land directly in the high courts or the apex court for judicial arbitration and disposal. This keeps happening either due to the unwillingness or inability of the relevant institutions or departments to deal with the problems or due to a complete erosion of trust and confidence people should have in these administrative arms and wings of the government.
The argument that the apex court, by disqualifying a prime minister has set a “dangerous precedent”, is neither plausible nor convincing. A perusal of the hearings in the initial days and a careful and detached reading of the two judgments (of April 21 and July 28) would reveal that the court would have preferred this case to come through the relevant state institutions such as the National Accountability Bureau, the Federal Investigation Agency, the Federal Board of Revenue, the State Bank of Pakistan or the Security and Exchange Commission of Pakistan. One of the honourable judges observed in the April 21 judgment that a Joint Investigation Team (JIT) had to be formed after NAB and its chief expressed their unwillingness or inability to take up or look into cases relating to the prime minister and his family.
Why did the apex court go on to constitute the JIT? The learned judges referred to para 19 of the April 21 judgment, which reads: “Yes, the officers at the peak of NAB and FIA may not cast their prying eye on the misdeeds and lay their arresting hands on the shoulders of the elites on account of their being amenable to the influence of the latter or because of their being beholden to the persons calling the shots in the matters of their appointment, posting and transfer.”
The relevant paragraph of July 28 judgment reads: “…Mian Muhammad Nawaz Sharif is not honest in terms of Section 99(f) of ROPA and Article 62(1)(f) of the Constitution of the Islamic Republic of Pakistan, 1973, therefore he is disqualified to be a Member of the Majlis-e-Shoora (Parliament).” Apparently the apex court reached this conclusion on the basis of an admission made by Nawaz Sharif, through his counsel, about his employment and his salary which he claimed to have never withdrawn and his failure to declare/disclose this fact while filing his nomination papers for the 2013 elections.
As regards the controversy about the receivable/un-withdrawn salary being an asset, the apex court in para 13 of its judgment observed that “...a salary not withdrawn would nevertheless be receivable and as such would constitute an asset for all legal and practical purposes. When it is an asset for all legal and practical purposes, it was required to be disclosed by respondent No. 1 (Nawaz Sharif) in his nomination papers in terms of Section 12(2) of the ROPA”. The judgment further reads that, “...the statement that he did not withdraw the salary would not prevent the un-withdrawn salary from being receivable hence an asset. When the un-withdrawn salary as being receivable is an asset it was required to be disclosed by respondent No. 1 (Nawaz Sharif) in his nomination papers for the elections of 2013 in terms of the section 12(2)(f) of the ROPA. Where respondent No. 1 (Nawaz Sharif) did not disclose his aforesaid assets, it would amount to furnishing a false declaration on solemn affirmation in violation of the law mentioned above, therefore, he is not honest in terms of section 99(1)(f) of the ROPA and Article 62(1)(f) of the Constitution of the Islamic Republic of Pakistan.”
What may be of greater importance (or graver consequences) is the Supreme Court ordering NAB to file seven references against Nawaz Sharif and his family members and NAB deciding to file an appeal in the apex court to re-open the Hudaibiya case which also involves Shahbaz Sharif, the Pakistan Muslim League-N choice for future prime minister. There will, therefore, be much more to add value to already prevailing uncertainty in the political sphere in the days to come.
The writer is a veteran journalist based in Karachi