ISLAMABAD: Justice Ejaz Afzal Khan in his main judgement in the Panama Papers leaks case regretted that the bulk of unauthenticated documents brought on record by Pakistan Tehreek-i-Insaf chief Imran Khan were pitched against another bulk of unauthenticated documents submitted by the sons of Prime Minister Nawaz Sharif.

‘‘We, therefore, have no hesitation to hold that a question of this nature in the absence of undisputed evidence cannot be decided by this court in exercise of its jurisdiction under Article 184(3) of the Constitution,’’ Justice Khan explained.

Though the trail of money was introduced through the letters of Hamad Bin Jassim Bin Jaber Al-Thani (Qatari letter), how did it end up in the ownership of the flats still clamours for an explanation, the judgement regretted.

Justice Khan dealt with Articles 62 and 63 of the Constitution and Section 99 of the Representation of People Act (RoPA) that deals with the disqualification of a member of parliament for not explaining his assets disproportionate to his known means of income.

He also cited Article 4 of the Constitution which suggests that no person can be compelled to do which the law does not require him to do. While Articles 62 and 63 and Section 99 of RoPA did not require any parliamentarian to account for his assets or those of his dependents even if they were disproportionate to his known means of income, Section 12(2 f) of RoPA required him to disclose his assets and those of his spouse and dependents, and not the means, Justice Khan said.

When none of the provisions of the Constitution or act dealing with disqualifications required any parliamentarian to account for his assets and those of his dependents, even if they were disproportionate to his known means of income, how could this court on its own or on a petition under Article 184(3) required him to declare that he was not honest and ameen, the judge wondered.

Thus this court cannot call the prime minister for his disqualification at least at this stage.

About the assets disproportionate to known means of income, Justice Khan referred to Sections 9(a v), 10 and 15 of the National Accountability Ordinance (NAO) and explained that any allegation levelled against the holder of public office under these provisions required an investigation and collection of evidence.

Such investigation is followed by a full-fledged trial before an accountability court for determination of such liability. But where neither the investigation agency probed the case, nor any of the witnesses has been examined and cross-examined in an accountability court nor any of the documents incriminating the person accused has been produced and proved in accordance with the requirements of Qanoon-i-Shahadat Order, 1984, nor any oral or documentary pieces of evidence incriminating the accused has been sifted, no verdict disqualifying the holder of public office could be given by the Supreme Court in a proceeding under Article 184(3) on the basis of a record which is yet to be authenticated, the judgement held.

“We must draw a line of distinction between the scope of jurisdiction of this court under Article 184(3) and that of the accountability court and between the disqualifications envisioned by Articles 62 and 63 of the Constitution and Section 99 of RoPA and the criminal liabilities envisioned by Sections 9, 10 and 15 of NAB Ordinance lest we condemn any parliamentarian on assumptions by defying the requirements of a fair trial and due process,” Justice Khan said.

‘‘We cannot make a hotchpotch of the Constitution and the law by reading NAO and pass a judgement in a proceeding under Article 184(3) which could well be passed by the accountability court after a full-fledged trial.

‘‘Nor could we lift Sections 9 and 15 of NAO, graft them onto Article 63 of the Constitution, construe them disqualifications and proceed to declare that the parliamentarian so proceeded against was not honest and ameen and as such is liable to be disqualified. A verdict of this nature would not only be unjust but coram non judice for want of jurisdiction and lawful authority,’’ Justice Khan said.

He also touched upon the disqualification in terms of Article 62(1 f) of the Constitution for making speeches the prime minister delivered inside and outside parliament, especially in view of Article 66 of the Constitution that gives privilege to the parliamentarians.

Justice Khan observed that mere contradiction between the speeches of the prime minister and statements of his two sons did not prove any of his speeches false or untrue unless it was determined after examining and cross-examining.

‘‘Once we hold that neither of the speeches of the prime minister could be used against him, the question of availability of privilege under Article 66 becomes irrelevant,’’ he observed.

Justice Khan summed up his judgement by stating that no aboveboard or undisputed documentary evidence was brought on the record to show that the prime minister defaulted in the payment of tax as far as his assets as declared in the tax returns were concerned; nothing significant had come forth against retired Capt Mohammad Safdar and Finance Minister Ishaq Dar.

Justice Sheikh Azmat in his judgement observed that the Panama Papers leaks attracted more public interest and media attention than anyone expected. Some of such attention unfortunately was contaminated with factually incorrect opinions, legally fallacious concepts and predicted decisions, which were bounced around on the airwaves every evening.

The temptation to restrain such media coverage and public comments was resisted. Freedom of expression and press was a right enshrined in Article 19 of the Constitution and this court was bound to defend the same, Justice Saeed said, adding that an open court was the essence of ‘‘our legal system’’. Restraining comments on the court proceedings would perhaps negate the very concept of the open court. Being insulted from all criticism, it can do more harm to an institution than a little unfair criticism.

In the present case, strong emotions were unleashed from both sides of the aisle but this court could not allow itself to succumb to populism and must remain steadfast to its oath, Justice Saeed said, adding that “we cannot be tempted to pronounce a popular decision but must decide all cases in accordance with law without fear or favour, affection or ill-will”.

Tragically, some of such legal fallacies of the often ill-informed and misguided public debate penetrated into the courtroom, Justice Saeed regretted.

Justice Ijaz-ul-Ahsan in his additional note observed that the people of Pakistan had a fundamental right to be governed in accordance with the law by those who fulfilled the requirements of the Constitution and the law and whose financial dealings, earnings and expenditures were open to public scrutiny to show that they met the test of honesty, integrity, financial probity and bona fide dealings.

‘‘It is high time that standards are set and systems put in place to develop a culture of accountability at all levels in order to cleanse our system and institutions from the evils of corruption, money laundering, loot and plunder of national resources by a few, irrespective of their rank or status in the system,’’ Justice Ahsan said.

Regrettably, most material questions remained unanswered or answered insufficiently by the prime minister and his children, Justice Ahsan said, adding that he was constrained to hold that he was not satisfied with the explanation offered by the prime minister and his children regarding the mode and manner in which the properties came in their possession and what were the sources of funds utilised for acquisition of the same.

Moreover, the source of funding for Azizia Steel Mills and Hill Metals Establishment in Saudi Arabia, Flagship Investments Limited and a number of other companies set up/taken over by Hassan Nawaz also needed to be established, in addition to the affairs of Capital FZE, Dubai, which also appeared to be owned by Hussain Nawaz, Justice Ahsan said.

Published in Dawn, April 21st, 2017