ISLAMABAD: Legal experts believe that the acting chief justice, who will take the oath on Saturday in the absence of Chief Justice Anwar Zaheer Jamali, may not be in a position to take an independent decision on the government’s request for a commission to investigate the Panama Papers leaks.

The chief justice will leave for Turkey on Saturday morning and the government has already sent a letter addressed to him to the Supreme Court office.

The experts say the chief justice may prefer to address the matter when he returns to the country, though in these days of advanced communication technology, there is also likelihood that he may address the matter during his stay abroad.

Soon after Prime Minister Nawaz Sharif’s announcement of writing the letter to the chief justice for the app­ointment of the commission, the government issued on Friday an SRO under which a three-man commission under Section 3(1) of the Pakis­tan Commission of Inquiry Act, 1956 was appointed.

“Heavens will not fall if the commission is appointed after a week or so because it is a complicated political matter. Besides, according to the prime minister, the letter has been addressed to the chief justice,” former president of the Supreme Court Bar Association (SCBA) Tariq Mehmood said.

Moreover, he added, if the acting chief justice took a deci­sion on the matter, the chief justice might not be part of the commission as had happened in the past when Jus­tice Javed Iqbal had to head the proceedings of the Supreme Judicial Commis­sion against former chief justice Iftikhar Muhammad Chau­dhry in absence of acting chief justice Rana Bhag­wan­das who was abroad then. Besides any decision by the acting chief justice may also attract unnecessary criticism from politicians, he feared.

Chief Justice of Pakistan Anwar Zaheer Jamali leaves for Turkey today

Former advocate general of Punjab Khawaja Haris is of the opinion that any decision by the acting chief justice will not be prudent because the opposition is demanding for a CJP-led commission to investigate the Panama leaks scandal.

“In all probability, the acting chief justice will prefer to stay away from the controversy,” he said.

A senior counsel said the acting chief justice only dealt with day-to-day administrative matters and since the matter had political undertones, he would keep himself away. But he said there was no bar that the chief justice decided the matter during his stay abroad, instead of waiting for the entire week.

Commission’s ToRs

According to the terms of reference (ToRs) notified under the SRO, the commission will examine information relating to the involvement of Pakistani citizens, persons of Pakistan origin and legal entities in offshore companies in Panama or in any other country.

The commission will consider involvement of former and present holders of public office in writing off their own bank loans or those of their immediate family members through political influence and transfer from Pakistan of funds which have originated from corruption, commissions or kickbacks.

It will also determine whether in any law for the time being in force in Pakistan has been infringed and in case the answer is in the affirmative then the commission should determine responsibility for such infringement and make recommendations.

In addition to the powers under Section 4 of the Pakistan Commission of Inquiry Act 1956, the commission will have the additional powers under the Code of Civil Procedure 1908 for summoning and enforcing the attendance of any person, including a tax expert or an accountant, and examining him on oath requiring the discovery and production of any documents.

The commission can also have the power to receive evidence on affidavits, issue commissions for the examination of witnesses on documents, and requisition any public record or copy thereof from any court or office. It will also have the powers to require any person, subject to any privilege which he may claims, to furnish information on such point or matters as, in the opinion of the commission may be useful.

Any officer not below the rank of a gazetted officer, specially authorised in this behalf by the commission, may enter any building or place where the commission has reason to believe that any books of account or documents may be found, and may seize any documents or take extracts or copies.

Any proceeding before the commission shall be deemed to be a judicial proceeding and the commission shall be assisted by all the authorities concerned of the federal and provincial governments.

The commission can start inquiry at a place and on a date to be fixed by it and shall submit its report to the federal government in accordance with its ToRs. The Cabinet Division will provide secretarial assistance to the commission.

Meanwhile, SCBA President Ali Zafar termed the commission a powerless body because it had no power to investigate in foreign lands.

His view was endorsed by former additional attorney general Tariq Khokhar who believed that the leaks scandal could not be investigated meaningfully in Pakistan because the material evidence was mostly in Panama. “It is beyond the realm of possibility to expect anyone from Pakistan to probe in Panama, which being a sovereign state, is not legally required to render any assistance to a Pakistani commission,” he said.

But Pakistan Bar Council Vice-Chairman Farogh Naseem was of the opinion that the commission could appoint any panel with a direction to go abroad and seek evidence.

Published in Dawn, April 23rd, 2016