Saad Rasool |
Earlier this week, the honourable Chief Justice of Pakistan, pursuant to the Panama Leaks judgment, dated 20th April, 2017, constituted the special bench for monitoring the Joint Investigation Team (JIT), responsible for investigating the Prime Minister and his sons, in regards to the specific TORs contained in the ‘order’ of the honourable Court. The special bench constitutes of the three honorable judges, who formed the majority in Panama Leaks verdict – namely Justice Ejaz Afzal Khan, Justice Sheikh Azmat Saeed, and Justice Ijaz-ul-Ahsan.
Controversy over special bench
The proceedings of the special bench are aimed at satisfying such members of that (larger) bench who were not fully satisfied with the evidence presented before the honorable Court. In these circumstances, Justice Khan, Justice Saeed and Justice Ahsan are the only reasonable choice for the special (implementation) bench.
There was some needless controversy, immediately after the announcement of the special bench, about its constitution. A few commentators remarked that if these honorable judges were not satisfied with the evidence presented during the Article 184(3) petition, it is unlikely that they would be satisfied with anything additional that comes to light through the JIT. All such criticism is wrong and misplaced. It is a sage order, on part of the honorable Chief Justice of Pakistan, to constitute the special bench consisting of exactly the same judges who order that a JIT is formed.
The final report of the JIT, or any hurdles faced by it, can be best appreciated by members of the bench that heard the Panama Leaks case. And in particular, the proceedings of the special bench are aimed at satisfying such members of that (larger) bench who were not fully satisfied with the evidence presented before the honorable Court. In these circumstances, Justice Khan, Justice Saeed and Justice Ahsan are the only reasonable choice for the special (implementation) bench.
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Ingredients & powers of Joint Investigation Team
Per orders of the honorable Court, the JIT’s will be housed in the Federal Judicial Academy, Islamabad, and will be provided an “initial amount of Rs. 20 million”, by the Federal Government, for its operations and investigative purposes.
During the last few days of the week, the special (implementation) bench finalized the names for inclusion in the Joint Investigation Team (JIT), as had been ordered in its earlier judgment in the Panama Leaks case. And, in the aftermath, the precise constitution of the JIT, and its ambit of work has provided much fodder for debate, in terms of political as well as legal implications.
To begin with, the names forwarded by the SECP and the State Bank of Pakistan (on Thursday) did not find favor with the honorable Court. Instead, the heads of these institutions were ordered, by the Court, to appear in person (on Friday) and deliver a list of all officers above the grade of BS-18, for the honorable Court to pick officers “with diamond-like integrity” (obviously a direct translation fro Urdu). As a result, from the very outset, this episode has cast doubts on the motive of different State institutions (especially under the control of Ishaq Dar) to carry out an independent and uninfluenced investigation.
Regardless, through the honorable Court’s interference, we now have a finalized JIT that will work under the auspices of the special bench. This JIT includes Mr. Amer Aziz (from the SBP), Mr. Bilal Rasool (from the SECP), Mr. Irfan Naeem Mangi (from NAB), Brigadier Muhammad Nauman Saeed (from the ISI), Brigadier Kamran Khurshid (from the Military Intelligence) and Mr. Wajid Zia (from the FIA, who will head the JIT). Per orders of the honorable Court, the JIT’s will be housed in the Federal Judicial Academy, Islamabad, and will be provided an “initial amount of Rs. 20 million”, by the Federal Government, for its operations and investigative purposes.
Also, importantly, the honourable Court has empowered the JIT to “be at liberty to utilise the expertise available in their departments and any other department of the Federal or Provincial Governments, as and when required by it”, and granted JIT the permission to “engage and associate local and/or foreign experts to facilitate the investigation and collection of evidence”. Furthermore, the honorable Court has clarified that the JIT “in essence and substance, is acting in the direction of the Supreme Court of Pakistan, all the Executive Authorities throughout Pakistan shall act in aid of the JIT”.
Read more: JIT assemble!
JIT: An Institutional Test
The case is also (partly) about the legitimacy of the honorable Supreme Court, and about the general perception that our Courts (mostly consisting of Punjabi judges) do not render judgments against Nawaz Sharif and his family (Takht-e-Lahore).
This sets the stage for a new episode in political and legal tussle… in which neither the honorable Supreme Court nor the Prime Minister and his family is the main actors. Instead, center stage in this national drama will be the members of JIT, as well as the institutions that they represent.
And this brings us to the crux of the matter: Yes, the Panama Leaks case is about whether the Prime Minister and his family members violated laws of Pakistan, siphoned off money illegally, live beyond declared means, and (resultantly) should be disqualified from being parliamentarians. Yes, the case is also (partly) about the legitimacy of the honorable Supreme Court, and about the general perception that our Courts (mostly consisting of Punjabi judges) do not render judgments against Nawaz Sharif and his family (Takht-e-Lahore).
But, at the moment, the real issue is neither the Court nor the Prime Minister. Instead, the JIT proceedings are (to a large extent) about answering a far more important and lasting question: can our State institutions (including NAB, FIA, SECP, and SBP) work independently, according to the mandate of their respective laws, even in the face of opposition from political masters? Or instead, are the State institutions in Pakistan nothing more than a pliable tool (personified in the deplorable image of Qamar Zaman standing before the honorable Supreme Court), to be used and abused at the whims of the political masters?
Whether Nawaz Sharif stays the Prime Minister or not, is a short-term issue. Whether PML(N) will win the 2018 elections or not, in the aftermath of Panama Leaks, is only a temporary political question. Whether the honorable Supreme Court will convict the Prime Minister or not (being an important question in itself) will remain a function of legal and constitutional interpretation. But whether our investigative agencies have the tenacity and moral courage to stand up to (and investigate) the King and his family, is of lasting importance to our democratic enterprise.
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If this entire exercise is carried out by a group of Qamar Zamans (read: spineless government servants, with no moral character), the actual verdict of Panama Leaks will be irrelevant in the larger scheme of things. Because, in such an eventuality, even if Nawaz Sharif is disqualified, we will all know (for the future) that corruption amongst the political elites will continue to remain an unchecked phenomenon in Pakistan. And that institutions, such as FIA and the NAB, are nothing more than tools in the hands of political masters, to be maneuvered in a partisan and dishonest manner.
God forbid, if it comes to that, the eternal battle between the ‘haves’ and the ‘have-nots’ will suddenly become the only real question in Pakistan. And the millions of Allah Dittas of this country will have no other choice but to drag the powerful few through the streets, for vigilante justice, which is fast becoming our nation’s de facto system of justice.
Saad Rasool is a lawyer based in Lahore. He has a Masters in Constitutional Law from Harvard Law School. He can be contacted at saad@post.harvard.edu. Follow him on Twitter. The views expressed in this article are the author’s own and do not necessarily reflect Global Village Space’s editorial policy. This piece was first published in The Nation.