Supremacy of the Supreme

Tussle between the bar and bench, which took an ugly turn last week, has finally been settled. What looked like an irresolvable conflict saw a surprise conclusion when Executive Committee of the Punjab Bar Council (EC-PBC) decided to exercise its unwritten, unspoken, unreal and unimaginable jurisdiction. By assuming appellate jurisdiction over high court, EC-PBC has set aside the five member bench’s order dated 21-08-2017 whereby license of an advocate had been suspended.

This pro-active step of the PBC is being criticized by some who are oblivious to the concept of ‘jurisprudential evolution’; and who rely a tad too much on concepts like common sense and sanity.

First; you cannot ignore the outright honesty of EC-PBC in admitting its own authority, or lack thereof, to pass such an order. If you read the operative lines carefully and add proper punctuation, you can’t ignore this subtle admission. Following is what a man deprived of “intellectual insight” may have read;

“So the impugned order dated 21-08-2017 is declared to be illegal, void, ab-initio, without lawful authority and jurisdiction,..”

This is how those capable of seeing through the legal jargon and spotting the subtle honesty may have read it;

“So the impugned order dated 21-08-2017 is declared – without lawful authority and jurisdiction – to be illegal, void ab-initio..”

Surprisingly, some elements in the legal community have out rightly rejected this visionary, revolutionary and necessary display of judicial activism from a non-judicial body. Hmph! Was this move unprecedented? Yes. Unreasonable? Yes. Unusual? Yes. Unnecessary? No, well yes but then no.

Lawyers and the PBC were left with no other option. This was the only way to assert their dominion over all other state entities. “We didn’t like doing this, we didn’t know what we were doing either, but it had to be done..we think” was the assertive statement from a well known lawyer who is thought to be behind this brilliant move.

Following suit, a few of Lahore’s leading law firms have decided to constitute benches comprising of their most senior partners to adjudicate appeals in cases decided against the firm. It is likely that PBC may discourage such a move owing to its undoubted, unquestionable, unseen, unnoticeable and unflinching belief in the rule of law.

Most excited of all on hearing of this order was a close aide of the now ousted Prime Minister. He couldn’t wait to break this news to his leader. On condition of anonymity he shared his party’s probable plans in light of this development;

“We are not going to waste time and money on review petitions before the Supreme Court. We had already pointed towards the people’s court. Guided by this revolutionary measure, we may constitute a bench of our own to decide our appeal against the Supreme Court’s verdict. We may not even need to, since our GT road rally can well be taken as the people’s court. You may see an order soon saying that the honorable bench of the people’s court comprising of 10000 honorable people has set aside – without lawful authority or jurisdiction – the supreme court’s order.”

The EC-PBC’s order will meet criticism from the bench, also from some members of the bar, but we shouldn’t lose sight of the big picture here. Thus, as per an anonymous source in PBC,  the council is mulling over issuing a direction to all lawyers making it mandatory for each law office to hang, on a prominent wall, a big picture.

My brothers in the fraternity who couldn’t see the order for what it is, I ask you to revisit and reconsider. How hard is it to see that we stand for the rule of law and nothing can stand in our way, not even law itself. For those who still cannot see the wisdom in this move; to you my dear sirs; the Emperor will always be nude.


Fraternity, Bar and Much Needed Reforms

You need badgers; lawyers, usually young ones, who would decorate their chest with a badge carrying the name of, and showing support for, a particular candidate for a particular seat in the bar’s cabinet. You need to host teas, lunches and dinners in honor of your voters and supporters. The number of attendees, and the amount spent, at times foretells a candidate’s fate in the elections. You need to pay license renewal and registration fees for lawyers and effectively propagate how many millions you have spent for the “welfare” of your fraternity.

You need demagoguery more than anything else; a candidate has to be a champion demagogue. There are promises to work for welfare of the bar and bar members. But before that, and way more imperative, is the assurance of his support whenever, wherever and however needed. He must promise that he will stand with the bar in any dispute. It has to be a pledge of unflinching support, subject to no consideration whatsoever.

Such attributes do not make bar politics entirely dissimilar to electoral politics in general. In fact there is less disconnect between the voter and the voted in the bar. However, bar politics has played a significant role in harming and polarizing the legal fraternity; wherein intellectual, ideological and ethical disparities are immense and grow consistently.

There’s a south pole; densely populated owing to better conditions and a more suitable environment for the indigenous. And the north pole; which seemed uninhabited for the silent and non-interfering nature of its inhabitants, however, of late there have been signs of life; thank God for that. Ideological path that leads to the north is jagged and intricate, discouraging many a traveler even before they embark upon the journey. Summer prevails in the south, not of discontent but of disorder, disobedience and disrespect, as has been evident from several instances of abuse of power, violation of ethical codes and misuse of process. One wishes for winter and, maybe, winter is coming.

Politics, or bar politics, is not inherently vile or disadvantageous; it is the form it has taken that makes it a cause for concern. For instance, in practice, it is not essential for any candidate to swear allegiance to the constitution or law because that is not a priority for the voter; not the foremost priority at least. Loyalty to the fraternity is what matters most. This puts the concept of ‘rule of law’ in considerable peril. Man has never been a fan of rules and laws. Unchecked and without a code to govern him, man would invariably choose self preservation and self interest over community welfare.

In recent years the trend of pressurizing courts for relief has become a norm. Tactics may vary from using a cabinet member to bringing numbers to the court. For newcomers to the fraternity, knowing and understanding the law is becoming more and more redundant. Being an apt litigant is considered unnecessary, having support of friends and colleagues is deemed more fruitful for the purpose of success. Fresh graduates thus have to ask themselves if they want to be a “good” lawyer or a “successful” one, since unfortunately, these are now two different objectives.

Young lawyers are greater in number, thanks to the sharp increase in inductions over the past decade. They comprise a huge chunk of registered voters and of voter groups. When candidates offer them unconditional support, they promise subservience to their whims and wishes. A youth that ought to have been mentored and nurtured by seniors, instead becomes the guide.

This is a noble profession that, as per my firm belief, still comprises more good than bad elements. Ignorance of and complacency towards certain evils over the past few years, along with some ill-conceived measures, has put our fraternity in jeopardy and brought a bad name to us among the masses. Winter ought to come; reforms must be made. There may only be a minority of black sheep among the black coats but the majority is being exploited; their silence and indifference is only aiding the exploitation. This has to stop. The bar and bench have differences, and neither is perfect. What we need to understand is that we are not the bench, we are the bar. Unless we rid ourselves of all imperfections, or most of them at least, we won’t have a high moral horse to mount.

It is time we pay attention to the elephant in the room that is fake degrees and credentials. In addition to verifying educational qualifications of newcomers, those already enrolled as advocates should offer themselves for scrutiny. There should be a strict ban on all political activities for every lawyer in the first five years of his/her practice. They should only be enrolled as a registered voter after being certified to have appeared before courts and pleaded a certain number of cases. We need to surrender self-regulation, or at the very least, regulation by an elected body. Instead bar disciplinary committees should have, as members, well reputed members of the fraternity who do not depend for votes or favor on the very community they aim to discipline and check.

The legal community, without desperately needed reforms, is trying to dig its way out of a hole. If we don’t act now, we will only go deeper and deeper into the abyss.

The Gulalai Drama and our Media’s Incitement to Idiocy

(An unfortunately necessary disclaimer: No the word “drama” in the title does not mean what you think it means. Please look it up.)

The alleger alleges, the accused defends and a few million spew nothing but nonsense. Equally abhorrent are both; the tendency to out-rightly reject Gulalai’s accusations and to believe them without any investigation; the attacks on her person and family and the attacks on the accused on mere allegations. Have we lost all objectivity? Is the word “polarized” now insufficient to describe our social and political discourse, have we gone way beyond being just opinionated? Has idiocy actually and finally taken over?

A woman comes forward with an allegation of sexual harassment against her party’s chairperson and another senior leader along with allegations of corruption against a provincial government. Sexual harassment immediately takes centre stage since corruption is immaterial as long as it exists on “my” side of the line. The woman is questioned, grilled, doubted and then questioned some more. By an investigative agency? No, by spokespersons of the accused and by our all righteous media. Wrong? yes. She is also supported, defended and encouraged. By her family or lawyers? No, by arch rivals of the accused party, some confused rights activists and another segment of our all righteous media. Just? No.

They say Gulalai has shown great courage by hurling accusations at a popular and powerful person. Really? When has it been difficult to accuse a politician? From allegations – some proven absolutely false later on – of rape, corruption, treachery to those of immorality and indecency, hasn’t the politician always been the easiest target? Yes, as a woman raising her voice against a man in our very patriarchal society, Gulalai may be deemed courageous. But then again, the accused being a politician opposed and despised by the ruling party makes it a tad easier.

They say this incident has brought to light the woes of women and the hardships they face in our male dominated society. Even if it does, its aftermath has brought to far brighter light the rise of idiocy, intolerance and bigotry. Woes of women have been brought to light by victims before, when we conveniently chose to look the other way. Amna Bibi; the 18 year old rape victim for instance, who kept struggling for justice and eventually set herself ablaze in front of a police station because not enough of us thought she exposed the woes of women, poor and the ordinary, because no minister or leader called her his sister and promised justice, because no channel ran her story over and over again or named the culprits again and again and again and because she failed to trend on twitter. This does not mean that just because we failed her, we ought to fail every subsequent victim of physical or verbal abuse, but this does reflect on our selective morality.

They say Gulalai does not make sense and her allegations seem made-up, concocted and part of a plot to defame a political party and its leadership. We are all judges without robes, rostrums and courts. With a very few exceptions, a huge majority has already given their verdict for or against Gulalai and the sad fact is that no real verdict from an actual judicial forum is going to change it. Responsible, or so they appear, politicians have suggested burning Gulalai’s house to the ground, other enthusiasts have incited fellows to throw acid on her, all the while screaming how women are not unsafe. Defenders of the accused have presented brilliant logics to question Gulalai’s integrity and decency by referring to her sister’s attire. These may not have been issues of serious concern had they not been presented, repeated or endorsed by our media.

They say Khan has a history of “misadventures” when it comes to women around him. Thus, even if Gulalai has not presented any evidence yet, she ought to be believed without question. Some have even gone on to vouch for her on oath without seeing the evidence.

A certain channel holds that since Khan did not respond to the allegation immediately, it implies that he is guilty. Another says that since Gulalai chose to keep mum over the alleged harassment for a few years, it implies that she is dishonest. Both stances are equally ridiculous.

Electronic and social media; talk shows, tweets and posts make your head spin. They render redundant the looming issues of harassment, women empowerment and equality before law and instead make you wonder how the poles in our polarized society are ever expanding. Bigotry is the only norm in debate and partiality clouds our judgment. With the media aiding and abetting, only the worse awaits us.

The Panama Verdict; Sharpening of the Sword

On July 28th, a three member special bench of the Supreme Court announced their judgment; followed by a final order of the five member larger bench, in the infamous Panama Papers Case.

The Prime Minister of Pakistan was declared dishonest and disqualified from being a member of the National Assembly under Article 62(1)f of the Constitution.

The judgment was always politically controversial even before it was authored and announced. Unfortunately it has also become a legal controversy; at the center of which lies the all mighty and all powerful Article 62(1)(f).

The late General Zia, in his attempted ‘Islamization’ of the Constitution and Pakistan, added clause (f) along-with four other islam-ifying clauses to Article 62, making it an essential pre-requisite for any person aspiring for election as a Member of the National Assembly that he pass the test of being “sagacious”, “righteous”, “non-profligate”, “sadiq” and “ameen”. General Zia’s islamization of other laws has haunted the country ever since. Thirty-two years later, his islamization of Article 62 has come to haunt his own mentee.

I, however, find the debate against Article 62(1)(f) quite empty and hollow. True that analysts, judges, politicians of the highest caliber have opined on the impracticability of such stringent conditions on character. True that the clause made its way into the Constitution in an undemocratic regime and thus did not represent the true will of the people. But the question is; is Article 62(1)(f) a living and breathing part of our Constitution? Has it been removed by any of the subsequent “democratic” regimes? The answers are  Yes, and No respectively.

As long as any provision is a part of my country’s supreme law, I would like it to be enforced please. It is the Supreme Court’s duty to give effect to the Constitution. It is the Parliament’s job to give to the Supreme Court a Constitution to go by. The argument that a statute or any provision of a statute is not practicable or does not represent the Parliament’s will yet remains a part of the legislated law, is absurd and without merit. Thus, in my humble opinion, the Supreme Court giving effect to Article 62(1)(f), regardless of the floodgate it opens, is perfectly legal and in line with the Supreme Courts duty to uphold and abide by the Constitution of Pakistan.

The next objection raised in the politico-legal controversy was that the Supreme cannot, and ought not assume role of a trial court under Article 184(3). The three member special bench has stood its ground with regard to their original opinion that the Supreme Court cannot itself declare the Prime Minister corrupt and convict/disqualify him, or any parliamentarian, on said grounds acting under Article 184(3) of the Constitution. They have thus ordered that the allegations arising out of the Panama Papers and the consequent petitions be investigated, and the accused be tried, under Section 9(a)(v) and 14(C) of NAO. They have maintained that under 184(3), without a proper trial entailing examination, cross examination, exhibition and scrutiny of documents, no one can be convicted or declared to be dishonest. This was their original view taken in the majority judgment pronounced on the April 20th and this is their view now. It was the dissenting judges who held that the matter does not involve intricate questions of fact as those framed by the three honorable judges, instead the question was whether the Prime Minister has been dishonest in his speeches and statements. The dissenting Judges believed that there was enough material before them to conclude that Respondent No.1; the Prime Minister has been dishonest and thus stands disqualified under Article 62(1)(f) of the Constitution and Section 99(1)(f) of the Representation of People’s Act. The other three judges, in the April 20th judgment, however held that the material available was neither sufficient nor conclusive and thus recommended formation of a JIT to first probe into intricate questions of fact.

So why was the Prime Minister declared dishonest and disqualified by the three member bench now, that too unanimously? What new material surfaced, which was not available then?

The Prime Minister has not been disqualified on the basis of any revelation in the Panama Papers, nor for any allegation contained in the Petitions. As those were held to be subject to further scrutiny and trial in the unanimous judgment. The Prime Minister has instead been disqualified on his own admission.

During the course of its investigations into the Panama Papers, the JIT discovered that Mr. Muhammad Nawaz Sharif was Chairman of Capital FZE Jebel Ali; a Dubai based company. And that a salary of 10,000 dirham was receivable by him against that position. This, like all other matters now referred to NAB, was an allegation contained in the JIT’s report. However, when confronted by the special bench during post JIT report hearing, the Prime Minister’s counsel – acting on the Prime Minister’s behalf and instructions – admitted that the Prime Minister was in fact Chairman of Capital FZE during that period and that he was entitled to the said salary, however he did not withdraw it. Thus this allegation now became an admitted and established fact slipping out of the sack that contained all unproven and denied allegations which have been sent for a proper probe and trial. As per our laws of evidence; the Qanun e Shahadat Order, any allegation that is admitted need not be proven.

It is interesting – unfortunate for the now disqualified Prime Minister – that this small admission has cost him so gravely. Had the admission not been made, the Chairmanship of Capital FZE and any salary in that regard, would also have been sent to NAB for a proper inquiry and trial.

Now coming to the strictly legal controversy; has the Supreme Court gone too far in applying the criteria set by the words “sadiq” and “ameen”? The Prime Minister has been disqualified for not declaring an asset that was not acquired or received when the declaration was due. As per the Supreme Court’s own judgment, the word “asset” has not been defined in any statute including the Representation of People’s Act. So there was no law that qualified any ‘receivable’ as an asset. The ambiguity has only been elucidated upon now in the honorable Court’s judgment. So was any receivable an asset in 2013 in the absence of any law or precedent declaring it so? Can the precedent set today be given retrospective effect? The contention makes sense in as much as the absence of a clear definition of the word “asset” is concerned. Was the Prime Minister dishonest by virtue of not declaring something he could not know he was supposed to declare? Shouldn’t this qualify as an honest mistake instead of a dishonest omission? These are questions that the Supreme Court has, by implication, answered in the negative and answered definitively. A provision that was already considered too stringent to be practicable as it required the highest standards of honesty, has now gone up a notch or two. As per this precedent, an unintentional mistake may qualify as a dishonest act and will be sufficient to disqualify anyone from being elected as a member to the legislative assembly.

The sword hung over the politician’s head by a dictator, kept in place by politicians themselves, is now sharper and heavier. The rope that holds it is weaker and thinner.

Is this irregular? Apparently yes. Is it illegal? Absolutely not, since this definition and scope has been given to a provision of the supreme law of the land by the Supreme Court of the country. Thus, it is now a law and has to be abided by and enforced. If it turns out to be an erroneous interpretation, it will be changed and altered by subsequent precedents or legislation. This is the evolution of the systems that we so dearly dreamed of, and now seem petrified by.


Expected Verdict and the Doctrine of Necessity

The three member special bench has concluded its proceedings and reserved its judgment. The entire country is now engaged in a hot legal debate. Every day our television channels try to predict what the Supreme Court is about to do. Everyone is a legal expert and intricate questions are answered with confidence; without any consensus whatsoever. Who is going to pass the final order? Will the Prime Minister be disqualified? Will the court instead refer the matter of disqualification to a proper forum for trial?

As for who or which bench, I have given my opinion in a previous article; the three member special bench is empowered to, and will, pass the final order.

The question pertaining to Prime Minister’s disqualification, however, is a tricky one. Reference can be made to the April 20th judgment of the five member bench, our constitution and our judicial history, to arrive at an educated guess.

The 547 page judgment in Constitution Petition no. 29 of 2016 was a 3-2 split decision. A deeper analysis would reveal that even though it was 3-2 with regard to the operating part, the judgment may be read as a three way split in wider terms. In that, the judgment is a 2-2-1 split.

Justice Khosa and Justice Gulzar agree that the Supreme Court has the power under Article 184(3) to consider the question of disqualification of a member of Parliament – and the Prime Minister – and that said power can be exercised without being bound by any procedural requirements of a proper trial. The hon’ble Justices have held that the matter in hand does not involve any intricate questions of fact, as was contended by the Respondents’ counsel and the Attorney General.

“… and now this court cannot turn around and shy away from deciding the matter simply because it statedly involves some disputed or intricate questions of fact which, as shall be discussed shortly, it does not.” Justice Asif Saeed Khosa (p.63,64)

Justice Azmat Saeed Sheikh and Justice Ejaz Ul Ehsan seem to agree to the extent of Prime Minister’s disqualification being justiciable by the Supreme Court under Article 184(3). They however held that the matter does involve intricate questions of fact and these need to be addressed, probed and answered before reaching a verdict. Justice Azmat and Justice Ehsan did discard the Respondents’ contention that such exercise cannot be undertaken by the Supreme Court under Article 184(3) and went on to hold that an exercise to probe into intricate questions of fact can, and has previously been, undertaken by the Supreme Court through an investigative body appointed by the court.

“No doubt, ordinarily this Court in exercise of its jurisdiction under Article 184(3) of the Constitution tends to avoid deciding the disputed questions of facts. However, this is not an absolute rule. In exceptional circumstances, this Court on more than one occasion has undertaken such an exercise.” Justice Azmat Saeed Sheikh (p.314)

All four hon’ble Judges seem in sync with regard to assumption and exercise of jurisdiction under Article 184(3) of the Constitution in matter of the Prime Minister’s disqualification.

On the other hand Justice Ejaz Afzal, in his judgment, clearly disagrees with the view that such an exercise can be undertaken by the Supreme Court in its constitutional jurisdiction. He holds that there are proper forums and laws available to address the question of a Parliamentarian’s disqualification and that the Supreme Court cannot, under 184(3) usurp powers of those forums.

“But where neither the Investigation Agency investigated 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 the Qanun-e-Shahadar Order, 1984, nor any oral or documentary pieces of evidence incriminating the person accused has been sifted, no verdict disqualifying a holder of public office could be given by this Court in a proceeding under Article 184(3) of the Constitution…” Justice Ejaz Afzal (p.230)

“We would not leap over such phases in gross violation of Article 25 of the Constitution which is the heart and soul of the rule of law.” Justice Ejaz Afzal (p.231)

“We for an individual case would not dispense with due process and thereby undo, obliterate and annihilate our jurisprudence which we built up in centuries in our sweat, in our toil, in our blood.” Justice Ejaz Afzal (p.232)

It is thus clear that even-though Justice Afzal did eventually agree on the formation of a JIT for investigation into the intricate questions of fact, he does clearly hold that the question of disqualification of the Prime Minister, or any Parliamentarian, cannot be adjudicated upon by the Supreme Court acting in its constitutional jurisdiction under Article 184(3).

The difference in approach of the honourable Justices can be attributed to the notorious doctrine of necessity; an evolved and reformed version thereof. While Justice Afzal adopts a stringent ‘by the book’ approach, the other four find it reasonable and necessary to take a more lenient path in view of exceptional, unfortunate or special circumstances.

Justice Khosa and Justice Gulzar have applied the evolved form of the doctrine to justify assumption and exercise of jurisdiction without resorting to an investigative exercise.

“These petitions had been entertained by this Court in the backdrop of an unfortunate refusal/failure on the part of all the relevant institutions in the country…” Justice Asif Saeed Khosa (p.63)

“It is obvious that when it comes to the said jurisdiction of this Court to do complete justice a strict application of the black letter law may not stand between this Court and the noble cause of justice if the circumstances so warrant.” Justice Asif Saeed Khosa (p.138)

Justice Azmat Saeed and Justice Ejaz Ul Ehsan, on the other hand, use the doctrine to undertake the exercise under Article 184(3) instead of referring it to NAB or ECP for trial.

“No doubt, ordinarily this Court in exercise of its jurisdiction under Article 184(3) of the Constitution tends to avoid deciding the disputed questions of facts. However, this is not an absolute rule. In exceptional circumstances, this Court on more than one occasion has undertaken such an exercise.” Justice Azmat Saeed Sheikh (p.314)

The hon’ble Judges have already given their views on whether the question of Prime Minister’s disqualification can be adjudicated upon by them under Article 184(3). It may thus be reasonable to predict a 2:1 split decision in favor of the said disqualification; Justice Ejaz Afzal dissenting.

I understand my reference to the doctrine of necessity may have raised a few eyebrows and turned a few heads. Admittedly the doctrine has played havoc with Pakistan’s political and judicial evolution. First adopted in Maulvi Tamizuddin’s Case by Justice Munir, this doctrine has repeatedly been used to justify abrogation and subversion of our Constitution. It has rightly been abhorred and despised by all true democrats and proponents of constitutional supremacy. But this is not the same vile version of the doctrine.

First, contrary to Justice (r) Iftikhar’s assertion, the doctrine of necessity cannot be buried or forgotten; for welfare and well-being of the people will and should always be the foremost consideration.

Second, I have called it a reformed and evolved version because it now exists in its true form; where justice takes precedence over law and not the other way around. While it has mostly been used to bypass substantial law, it now only exists to go around procedural technicalities only where necessary for the ends of justice.

Third, while it has always been used to send the entire democratic system packing, it is not the intended goal anymore. Our democratic structure does not stand on the shoulders of any individual. The Prime Minister’s disqualification, if it comes to that, has no bearing on the existence of our Parliament or our democracy.

Justice Ejaz Afzal is right; our  judiciary and jurisprudence have evolved. Latching on to them, so has the doctrine of necessity.

The Blue Brick City

Residents had grown accustomed to blue brick houses and blue brick buildings. Decade after decade they hadn’t seen a building that wasn’t blue. Forgotten there even existed a red brick in the world, they were oblivious to and complacent with the damage blue did to their eyes and to their lives.

Then one day a nobleman stood on the blue brick bench in the blue brick park of the blue brick city and gave a sermon on the evil that was the blue brick. He reminded the people of how there existed red bricks in the world. He told them stories of other cities with red brick buildings and how their citizens lived happy and prosperous lives. He promised the people a red brick building; the tallest in the city.

The people started talking, believing and hoping.

In the centre of the city’s busiest street, the man started building. His team of builders, architects and masons soon realized how red bricks were much heavier than the blue ones, and that it required a lot of extra effort to carry them. They came to the nobleman and told him it was impossible to build such a tall structure entirely out of red bricks. Using only a few blue bricks wouldn’t make a difference they said, and the nobleman agreed. The next morning when residents saw blue bricks in the wall, they began talking, doubting and questioning. The nobleman stood on the blue brick bench in the blue brick park and explained how a few blue bricks didn’t matter and will not even be noticeable once the structure stood built. The people believed, hoped and waited.

It was next discovered by the team that they would need to dig deep into the grounds to fetch red bricks buried beneath tons of soil; it would take a lot of effort. Thus they came to the nobleman and told him there weren’t enough red bricks to build and that if the front walls were red, it wouldn’t matter if walls on the back were blue. The nobleman agreed. The residents then saw entire walls that were blue. They started talking, doubting and questioning. Yet again, the nobleman stood on the blue brick bench in the blue brick park and explained how only the front walls mattered. The people believed, hoped and waited.

As time went by and the back walls were built, it was now the front wall’s turn. As the team started to lay the heavy red bricks, they discovered it would take a very large amount of mortar to make the bricks hold. It would be very expensive and tiresome, they said to each other. The nobleman was told that it wasn’t  possible for the red bricks to hold, and the building would either not stand, and even if it stood for a few days, it would eventually collapse. It was thus wiser to build the building with blue bricks and then place a red brick at the top for the people to see and benefit from. The nobleman doubted his team for a moment, and then believed them for he had no experience in building and had to trust the trusted experts. He thus agreed.

On the blue brick bench the nobleman stood and explained: it didn’t matter what color the building was, it didn’t matter if the building was blue, as long as the brick on top was red.

The red bricks were removed, and the entire building was built in blue with a red brick on top, only to be removed and forgotten years later.

The promised red building was delivered to the people, only it was blue.

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.