Judges and the JIT; Whats, Hows and Whys.

 

On the 20th of April, 2017, a five member bench of the Supreme Court of Pakistan (SC) passed its order in Constitutional Petition Number 29 of 2016, commonly known as the Panama Leaks Scandal/Case.

By a majority of 3 to 2 (hon’ble Asif Saeed Khan Khosa and Gulzar Ahmed, JJ) dissenting, the 5 member bench ordered constitution of a Joint Investigation Team (JIT) which would investigate into, and find answers to, thirteen questions put forth by the honourable bench. It was ordered that the JIT should complete the investigation and submit its final report within a period of sixty days from the date of its constitution. The Chief Justice was requested to constitute a special bench for implementation of the Judgment/Order.

In consequence, a three member special bench was constituted which then formed a six member JIT on the 5th of May, 2017, and the investigation into one of the most high profile cases in Pakistan’s history thus began.

The JIT submitted its final report, before the three member special bench, on the 10th of July, 2017. Before its constitution, during its working and after submission of its report, several questions have been raised by jurists, media persons and politicians regarding different aspects relating to the case and JIT. Some of these questions, mentioned below, will be addressed in this article. I am basing the answers on my humble understanding of the law . These questions, and my answers thereto, are;

Q.1 : Who will pass the final order in Panama Leaks Case, based on the JIT’s final report? Will a new, larger or full, bench be constituted? or

Will the original 5 member bench resume its proceedings? or

Will the 3 member special bench pass the final orders?

As deadline for submission of the final report drew closer, a debate began on our television channels as to who, or which, bench has jurisdiction to pass a final order in the Panama Case. Several analysts and legal minds opined and addressed the question. Three opinions surfaced; (i) a new bench will be constituted, (ii) the original 5 member bench would resume its proceedings since the 3 member bench may stand dissolved with submission of the JIT’s final report, and (iii) the 3 member special bench would pass a final order.

Although the judgment/order passed on the 20th April by the 5 member bench may technically be referred to as interim in nature, the bench seems to have definitively culminated its own proceedings upon pronouncing it. The power to pass a final order has been left with the 3 member special bench, which is quite clear from a bare reading of Para 3 & 4 of the Order of the Court, which states;

“3.       The JIT shall submit its periodical reports every two weeks before a Bench of this Court constituted in this behalf. The JIT shall complete the investigation and submit its final report before the said Bench within a period of sixty days from the date of its constitution. The Bench thereupon may pass appropriate orders in exercise of its powers under Articles 184(3), 187(2) and 190 of the Constitution including an order for filing a reference against respondent No. 1 and any other person having nexus with the crime if justified on the basis of the material thus brought on the record before it.

 

  1. It is further held that upon receipt of the reports, periodic or final of the JIT, as the case may be, the matter of disqualification of respondent No. 1 shall be considered. If found necessary for passing an appropriate order in this behalf, respondent No. 1 or any other person may be summoned and examined.”

(Bold added for emphasis)

It is crystal clear that the 5 member bench has not retained any powers or authority to pass the final order.

As regards sending of a reference to NAB, the power to pass an order in this regard has unequivocally been given to the 3 member special bench. Similarly, by implication, the power to pass an order of disqualification has also been given to the 3 member bench, since this power could be exercised either upon submission of the periodic or final report, which were to be submitted to the special bench.

This settles the question of whether the 5 member or special bench has the authority to pass a final order.

As regards constitution of a larger or full bench, it may be noted that, administratively, Chief Justice of the Supreme Court is empowered to constitute a larger or full bench for adjudication upon a matter. This power, however, is usually exercised on recommendations of the bench before which a case is already pending. Since the 3 member special bench has absolutely and completely been empowered, by the 5 member bench, to conclusively adjudicate upon the matter, it is unlikely that such a recommendation would be sent, even upon the application of a party to the case.

It is thus most probable, in my opinion, that the three member special bench would pass a final order in this case. The order will decide whether the Prime Minister stands disqualified or not and if a reference against any of the Respondents, or any other person, is to be sent to the National Accountability Bureau (NAB).

Further, the bench has also been empowered to pass any other “appropriate” order in exercise of powers under Articles 184(3), 187(2) and 190 of the Constitution. Such order may include orders of dismissal or suspension of the head of an institution to which a reference may be sent. Thus under Article 184(3) and 187(2), the bench may order removal of the Chairman NAB. The 5 member bench has already passed damning remarks on his partiality and incompetence, which have been substantiated in the JIT’s report.

 

Q.2 : Do the parties, Respondents in this case, have the option of filing objections to the JIT’s report? Under what circumstances will such objections be entertained by the Court?

This question is linked with another intricate question pertaining to the legal status of JIT. Powers and status of the JIT are, in my opinion, governed by order of the 5 member bench. As opposed to a local commission or an investigation officer, the JIT is not a statutory entity. No specific powers or procedure for the JIT have been given under any law. It has instead been formed by order of the Supreme Court exercising its powers under Article 184(3) of the Constitution. JIT was formed by the Supreme Court for fetching answers to key questions raised by the court itself during proceedings on petitions. It’s legal status can thus only be defined by the court. Procedure and mandate of the JIT, as given by order of the court, was inquisitorial and by no means adversarial. Only the respondents, their witnesses or witnesses called by the JIT,  appeared before it. Neither the Petitioners, nor any witnesses put forth by them were examined. If proceedings of the JIT were to be given an adversarial tinge, it can only be done by proving that the JIT, or the court, itself acted as an “adversary” to the Respondents. Attempts have been, and are still being made, to establish this conjecture.

In my opinion, any objections filed by the Respondents will have to stand on either of the two presumptions; 1. That the JIT was undoubtedly biased or partial against the Respondents, and 2. That the JIT blatantly violated their mandate, principles of justice and legal provisions. At the moment, none of this seems even close to being established; not from what has been said before the media at least.

For instance, if the Respondents were to prove that the JIT misquoted them or their witnesses in the report, it will need to be proved, or, at the very least, a reasonable doubt will need to be created. Unless these allegations are true, it will be impossible to caste a doubt especially in the presence of video and audio recordings.

If it is alleged that the allegation of forgery and falsification is baseless, the allegers will need to prove calibri’s availability before 2007, and thus disprove Microsoft’s claim otherwise.

Thus even though parties do have a right to file objections to the JIT’s working and report, it seems highly unlikely that the objections – unless exceptionally sound, cogent and well founded – will be entertained.

The allegation of bias leveled against the JIT will need to be established through evidence. Burden of proof will be on the allegers, and not the JIT. As yet, no evidence has been brought forward or shown to the public, nor has it been claimed that there is any evidence kept for Supreme Court’s eyes only.

Objections pertaining to members of the JIT have already been dismissed by the Supreme Court. Thus; establishing that any one of the members was working on a hidden agenda may not be easy in the absence of strong, cogent evidence.

 

Q. 3 : Did the JIT go beyond its mandate?

To address this question, one first needs to understand the mandate given to JIT by the 5 member bench. It must be kept in mind that the bench did not restrict it’s self to prayers contained in the petitions. Instead the bench, on its own, devised thirteen key questions considered relevant and significant to conclusively and comprehensively adjudicate upon the matter before it. Mandate of the JIT was thus not governed by what was prayed for by the Petitioners, but by what was asked by the court. In that, the JIT doesn’t seem to have crossed any lines. The supreme court empowered the JIT to investigate into, and answer, the following main questions;

(1) How did Gulf Steel Mill come into being;

(2) What led to its sale;

(3) What happened to its liabilities;

(4) Where did its sale proceeds end up;

(5) How did they reach Jeddah, Qatar and the U.K.;

(6) Whether respondents No. 7 and 8 in view of their tender ages had the means in the early nineties to possess and purchase the flats;

(7) Whether sudden appearance of the letters of Hamad Bin Jassim Bin Jaber Al-Thani is a myth or a reality;

(8) How bearer shares crystallized into the flats;

(9) Who, in fact, is the real and beneficial owner of M/s Nielsen Enterprises Limited and Nescoll Limited,

(10) How did Hill Metal Establishment come into existence;

(11) Where did the money for Flagship Investment Limited and other companies set up/taken over by respondent No. 8 come from, and

(12) Where did the Working Capital for such companies come from and

(13) Where do the huge sums running into millions gifted by respondent No. 7 to respondent No. 1 drop in from.

Additionally, two other questions/queries were also put forth;

(14) The JIT shall investigate the case and collect evidence, if any, showing that  respondent No. 1 or any of his dependents or benamidars owns, possesses or has acquired assets or any interest therein disproportionate to his known means of income.

(15) The JIT may also examine the evidence and material, if any, already available with the FIA and NAB relating to or having any nexus with the possession or acquisition of the aforesaid flats or any other assets or pecuniary resources and their origin.

As is evident, an all encompassing mandate was given to the JIT. It can even be said that, considering the enormity of its scope, it was almost impossible to go out of its ambit. Furthermore, the bench said that this needs a “thorough” investigation. Meaning thereby, that all matters even closely related to any of the above questions became relevant. No limits could be imposed with regard to how far back in time the JIT needed to go with its investigations or how it stretched its inquiry horizontally or vertically.

Again, to establish the allegation that the JIT went out of its mandate, it will need to be proven that any specific action or aspect of its inquiry was absolutely irrelevant to the 13 (+2) questions. Again; unlikely.

 

Q. 4 : Can the bench pass a final order regarding Respondent No. 1 (Prime Minister’s) disqualification, or will there be a trial first?

This question has recently been raised, even by certain glorified jurists and human rights activists. It has been said, that the JIT report’s status is that of a “police challan” and no final order can be passed without a proper trial. Thus all that the bench can do is refer the matter to another forum for a proper trial.

First, judgment of the five member bench was quite clear on assumption of jurisdiction under Article 184 (3) over the case. The only disagreement, as I see it, was with regard to the mode of exercising that jurisdiction; whether to pass an order or a declaration directly, or to first have a thorough investigation first and then pass an order.

It is interesting to note that there was a tinge of the allegedly buried “doctrine of necessity” in the judgment. Jurisdiction was acquired after holding, unanimously, that it is due to failure of state institutions responsible for checking and eradicating the evils of corruption, money laundering etc., that the Supreme Court is left with no other option but to assume jurisdiction over this matter. Same reasoning has been given for forming a JIT instead of trusting NAB with the investigation.

It needs to be kept in mind, that if the Supreme Court were to render it’s self powerless in the face of technicalities and obstacles, it may not have assumed jurisdiction in the first place. If the grounds for assuming jurisdiction were consistent failure and ineffectiveness of the legal system and machinery in place, the same system and machinery will not be resorted to after spending more than a year in this exercise. The Supreme Court has unfettered powers under Article 184(3) when it comes to matters of public importance. It has already assumed jurisdiction over this matter, deeming it a case of immense public importance and will see it through.

In my opinion, the court will decide upon the Prime Minister’s disqualification, be it for or against it, without any trial or further proceedings. The Prime Minister may be summoned for appearing on the next date of hearing, may be the 24th. Where-after his fate may be decided. It will also be decided whether reference shall be sent to NAB, and who all are to be arrayed as accused in such a reference. Further, fate of Chairman NAB, may also be decided before a reference is sent. As for allegations of falsification and forgery of documents against other respondents is concerned, same will not be decided by the special bench, and may instead be referred to a proper forum.

 

Q.5 Did the JIT have outside help? From the “establishment”, ISI in particular?

 

This is not a strictly legal question, however I would like to comment on it as follows. This question has been raised by several persons within and without the PMLN.

Even though professionals in the JIT were competent enough to investigate the matter and write a comprehensive report within 60 days, ready availability of certain documents and foreign assistance to it has raised a few eyebrows. I for one, do believe that the JIT was helped by the ISI. But was it an “outside” help?

One member each from the ISI and MI were inducted in the JIT upon Supreme Court’s directions. Reasons for doing so may vary from their institutional professionalism to resourcefulness, but the fact remains that they were officially a part of the JIT and thus all their resources were readily available to the JIT in the performance of its functions. So these are two different questions; erroneously or mala-fidely asked in conjunction. Yes the JIT was aided and helped by the ISI. No, that does not mean it had any “outside” help. The five member bench also directed all state institutions, and the respondents, to cooperate with and facilitate the JIT in the performance of its task. Thus, even if it weren’t a member of the JIT, ISI was duty bound to assist it.

 

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