ISLAMABAD: A Supreme Court judge on Tuesday feared that disqualifying the prime minister on the basis of off-the-cuff statements would set a dangerous precedent in the country’s judicial history.

“We, as human beings, make off-the-cuff statements without a sense of guilt and then we usually review them. But disqualification on the basis of such statements will be setting a dangerous precedent,” observed Justice Ejaz Afzal Khan during a hearing of the Panama Papers leaks case.

The observation came when Advocate Naeem Bokhari, representing the PTI, referred to the PM’s April 5, 2016 address to the nation and his May 16 speech to parliament, reiterating that Prime Minister Nawaz Sharif never mentioned anything about his investments in Qatar and that the Qatari letter that came later was a fabrication.

Contrary to the claim that the sale of Dubai and Jeddah factories was the source of funds for the business run by his sons, Hassan Nawaz — the younger son — had claimed to be a student in London in 1999 and said he was living in a rented apartment, while pumping huge amounts of money into at least six different companies that he owned until 2005.

Though the Sharif family claimed that Hassan became the owner of the four flats in 2006, he credited a sum of 705,051 pounds in 2002, 990,244 pounds in 2003, 2,079,712 pounds in 2004 and 2,351,877 pounds in 2005.

Justice Khosa regrets making an observation against parliamentarians during Monday’s hearing

This showed his business was flourishing and the unexplained funds had been available since 2001, the counsel argued, adding that there was nothing on the record to show how the outstanding liabilities were paid off when 75 per cent shares of Gulf Steel Mills were sold in 1978.

Mr Bokhari also pleaded that without considering the allegations levelled in the Panama Papers, the court should give a finding over the prime minister’s misstatement before parliament since his speeches were definitely not off-the-cuff, but were written statements.

Justice Khan, however, observed that the entire controversy revolving around the purchase of four London flats and the concealment of assets of the PM and his sons stemmed from the Panama Papers leaks. Before giving any finding, the court has to examine the role of the prime minister after scrutinising the entire record; can the court render a momentous judgement on the prime minister’s guilt without appreciating the evidence, the judge asked.

“Momentous decisions have been taken on the basis of the Panama Papers around the world,” retorted Mr Bokhari.

But Justice Sheikh Azmat Saeed asked the counsel whether any of those were judicial decisions.

“Many documents that you referred to are deficient and lack credibility,” regretted Justice Khan, emphasising that the apex court was not seized with a criminal trial at the moment.

The statement made by the prime minister in parliament on May 16, 2016 was not part and parcel of these criminal transactions (money laundering), the judge said.

Justice Asif Saeed Khosa, however, asked the counsel to explain how to connect the prime minister with a family business which was being controlled by Mian Mohammad Sharif — the father of the prime minister who died in 2004. Was the prime minister controlling all the money and what share did he have in the entire business, the judge asked.

Justice Saeed asked the counsel to read Article 10-A of the Constitution, which ensures due process and fair trial, before asking Mr Bokhari whether it was possible to give a finding that would affect the prime minister’s ability to hold his office, without a fair trial and recording of evidence.

On Tuesday, the counsel also referred to a 1994 report by former Interior Minister Rehman Malik, the then additional director of the Federal Investigation Agency, on the basis of Ishaq Dar’s confession against alleged money laundering by the Sharifs. The purpose is to provide material to evaluate how the money was laundered, the counsel argued.

But Justice Khan observed that this letter was outside the scope of the current controversy, adding that this was not material to be considered in a petition filed under Article 184(3) of the Constitution. Under Article 184(3) the Supreme Court has the jurisdiction to enforce fundamental rights if they are breached.

“Do you know what happened to cases the court took up under 184(3), when the court began to fix the price of sugar, which could not be implemented?” the judge inquired.

“Do not drag us to that extent where we become the subject of ridicule. We want to maintain the dignity of this court, which is very important for us,” Justice Khan asserted.

Referring to Rehman Malik’s report, Justice Khan argued that a confessional statement remained a piece of paper unless it was proven. This confession can be used by an accountability court but not by the Supreme Court.

Justice Khosa inquired about the fate of the report and asked whether Rehman Malik pursued it after becoming the interior minister. The counsel replied in the negative.

At the outset of Tuesday’s proceedings, Justice Khosa regretted making an observation against parliamentarians on Monday and said that he should not have said so, adding it was too generalised a statement. “I stand corrected,” Justice Khosa said.

Jamaat-i-Islami chief Siraj-ul-Haq also filed an application before the apex court, requesting that the prime minister be summoned in person to clarify the controversy that had arisen due to his statements before parliament, in order to ascertain the truth.

Published in Dawn January 11th, 2017