|
PANAMA PAPERS,
AN OPPORTUNITY LOST OR
MISSED AS A NATION
Barrister Amjad Malik writes
a critical analysis of the judgement of Pakistani courts on Panama papers
“A believer is never a person who scoffs at others, calls them names,
or utters vulgar and obscene phrases” (Tirmithi). Alas , we fail and disappoint
our nation and as Iqbal RA says we bend and bow whenever time came to
stand. On 20 April 2017, the Supreme Court of Pakistan in its wider
wisdom in 549 pages dismissed the petitions by 3-2 with the learned judges of
the SC Asif Saeed Khosa LJ and Gulzar Ahmed LJ sought to write a
dissenting note in the judgement of constitutional petition no 29 of 2016.
The five-judge bench comprising Justice Asif Saeed Khosa, Justice Gulzar
Ahmed, Justice Ejaz Afzal Khan, Justice Azmat Saeed and Justice Ijaz Ul
Hasan issued the landmark judgement 57 days after concluding the
hearing. Some four months were spent hearing the case. The top court
ordered to set up a Joint Investigation Team within a week to probe the
allegations against the Premier Sharif family and submit a detailed report
within sixty days. It also ordered Sharif’s two sons — Hasan and Hussain — to
appear before the JIT. In their dissenting note the two learned judges
sought action against Premier and his sons without the need of a probe or trial.
Whereas justice Ejaz Afzal Khan, justice Sheikh Azmat Saeed and justice Ijaz Ul
Hasan did not resort to such line of action and favoured a thorough
investigation on money trail by a high powered Joint investigation Team san any
top judge to compete their investigation within 60 days and the report of the
progress to be tabled before a separately constituted implementation bench duly
ordered by the Chief Justice of Pakistan.
To me, the long awaited judgement on account holders of Panama papers
starts in a filmy style with a quote of a Mario Puzo's famous novel Godfather,
"behind every great fortune there is a crime- Balzac". I feel it was
unnecessary to colour this long awaited sensitive judgement with filmic and
dramatic style when 'justice' is part and parcel of true Islamic society
and many verses on 'adal ' (justice) were easily available in Quran and Hadith
to otherwise an honourable justice. I can for myself quote many which
could have a better start. Allah (SWT) says in the Noble Qur'an:
-"The unjust will certainly have no happiness." (Al
Anaam, 6:21).
-"Allah does not guide the unjust." (Al Anaam, 6:144)
-"Allah does not love the unjust." (Al-e-Imran, 3:57)
-"We destroyed certain generations who lived before you because of
their injustice." (Yunus, 10:13)
-"The unjust will face a painful punishment."
(Ibrahim, 14:22)
-"Do not think that Allah is unaware of what the unjust people
do." (Ibrahim, 14:42)
One thing is quite clear that any society can survive in poverty but
not in injustice. A few learned wise, gave judgement before even probe,
but, now there will be a probe by JIT & then judgement but declaration of
two will haunt the antion for years to come. There seems to be an open conflict
between two if you read between the lines. It seems somewhere in between
a decision is in contemplation to check the Prime Minister of Pakistan Mian
Muhammad Nawaz Sharif to claim his right to throne in 2018 elections. But God
Almighty has his own ways to ensure justice and He works mysteriously. He is
better planner of all, but bending and twisting seems on the card, as was
visible around dharna. The divided judgement, declaration and JIT will cause
further divide the national view and will create a right between civil and
military already tensed relations.
As a lawyer, rather than story telling, the paragraph 65 of Khosa LJ
was suffice to accord papers and arguments when he said, "I
have attended each and every argument advanced , have perused the entire
documentary material produced and have also gone through all the precedent
cases cited before the court besides brooding over the diverse aspects of this
case from all possible angles." After paragraph 65 , detailed
narration of syllabus for good 192 pages with respect to the honourable justice
is beyond me when there is a part 2 of the sequel and probe is yet to be
initiated by JIT, on the lines indicated, and directed by a five member bench.
In para 71, the judge mentions article 10A, " for the determination of
his civil rights and obligation or in any criminal charge against him a person
shall be entitled to a fair trial and due process"., The
judge says in the next paragraph as under, "there is hardly any 'determination' of
civil rights of the private respondents involved in the present proceedings and
no 'trial' of the Saud respondents on any 'criminal charge' is being conducted
in these proceedings and, therefore the said contention has failed to impress
us. The case in hand is akin to the case of Mohtarma Benazir Bhuttoo and
another vs President of Pakistan and others (PLD 1998 SC 388) clarified in
Mohtarma Benazir Bhuttoo v president of pakistsn and 2 others (PLD 2000 SC 77)
and Air Marshal (Retd) Muhammad Asghar Khan v General (Retd) Mirza Askam
Baig , former chief of army staff and others (PLD 2013 SC1) wherein the
constitutional aspects of the cases were decided by this court under article
184(3) of the constitution whereas the criminal aspects of the matters were
left to be attended to by the appropriate investigation agencies or criminal
courts". The party whose account was no where seen in Panama Dossiers
was branded 'dishonest', lack of
compliance and not ‘ameen’ without
probe and trial was a joke with the justice reading Article 10A as above, if we
yet to see the sight of investigation report.
When jurists start writing books, justice is lost in translation ,it's
not us alone it's worldwide phenomenon as it is not easy to do justice
which is seen to be done , no matter how high we claim , trial of General
Musharraf, Hussain Haqqani and Raymond Davis satirically smile on us. The
decree is 549 pages, It's an irony if it is still incomplete is a lay
man's voice. In fact, laymen cannot even comprehend the judgement which is not even
translated in native language for wider public audience as it is too
long. That's why, Islamic jurisprudence and caliph Omer's laws
are famous as then jurists did not write books but ensured justice when and
they enquired the ruler where did he get the extra cloth for his dress
and ensured justice through seeking a timely explnation.
‘Innocent until proven guilty by a court of law’ is a presumption in
favour of the accused to root out those ambiguities prevalent in our legal
system. Almighty always protects the
innocent as one can't be convicted through selective , arbitrary and summary
justice. Justice must always be seen to be done ! Action against real
culprits is pending as declarations are available against the one who was
not even an account holder but once JIT is over, it will be time to
sweep all for corruption especially those
2500 account holders in Panama Papers
, defaulters of loans those privy to Swiss accounts. The past experience
tells that whoever judiciary came close to cap corruption "prejudice was
found floating at the surface" on convicting judgements. Everybody is
interpreting the judgement more than the judges who wrote it, pity is the
nation seems divided than united after this so called claimed for fame
judgement which was once said that it will be remembered for years, by some.
Critics will question the propriety of the order as to after 549 pages if still
nation will have to wait for JIT and part two , then what's historic about
it, Good judgements may be one or two pages or can be longer which is only
understandable if it does justice. Here the judges were reluctant to name and
Shame an officer designated as a watch dog on corruption but bullied the chief executive
with the arrows of words .
The final order is that The Pakistan Supreme Court
rejected calls to disqualify Prime Minister Nawaz Sharif from office stating
that there was insufficient evidence concerning the corruption allegations
against Sharif and his family to constitutionally compel his removal from
office, and set a probe to look into money trail for the purchase of 4
Park lane properties. I am surprised the judges will only see trail of
gulf steel , as there is more to see as justice will only be completed under
article 187 of the constitution 1973 if money looted and stashed in
Switzerland accounts is returned too. The law on corruption needs to be
amended like china to use it as a deterrent to corruption so that any one
entering into politics of public office through back door is tried and tested
on the alter the judges claim to be the sacred process of separation of chaff
from grain through Article 62. & 63 of the const.1973. If across the board
accountability through mean and deadly honest and professional process with
wider consensus is not attained then poor politicians will be grounded heavily
and rich dictatorial general and money mafia will sail through by passing with
flying colours as, who will ever bell the cat. We need to look around as a
society on our take on corruption and the difference in our sayings and doing
and our life styles compared with our income and means only then , we
must call each other names . Sadiq and ameen is yet far far away on the
altar.
Imam Jafar as Sadiq (as) said: "Justice is more delicious than
honey, softer than butter, and more sweet-smelling than musk." This
judgement if is giving delicious taste then why nation seems divided and
irrelevant. Allah commands that " (people) to maintain justice,
kindness, and proper relations with their relatives. He forbids them to commit
indecency, sin, and rebellion. Allah gives you advice so that perhaps you will
take heed." (An-Nahl, 16:90). I leave it to the collective wisdom of
the people which never disappoint us on the decree of Panama Papers whether Justice is done in its completeness or
an opportunity we had, is duly missed to streamline our laws and change the mindset
on corruption and across the board accountability or we truly lost the chance,
once again.
"Truck and light" is a glaring comparison offered by critics in
the west as the JIT will further polarise an already polarised society. What
the most wisest could not do, will be attempted by subordinate officers, is a
question coming to minds to many stalwarts . In a lay man’s term , we must take
it as 'NO' from my lords as they pass the buck. I am trying and struggling to
find wisdom in such golden words scattered on 549 pages of those learned and
wiser than me.
I wrote when Panama papers were revealed that it's an opportunity in a
difficulty and we can use this to streamline our laws to ensure across the
board accountability. We lost a lot of time , may be some people do not afford
true fair and transparent accountability in Pakistan as it will end impunity
and mafias and rule of law will reign in where justice for all will be the name
of the game, only one day. Very sad , painful state of affairs and sheer
apathy , as a learner of law the more I read the more I feel what have they
written , and what is the end to meet justice, so I invite all critiques to
read the decree before they offer opinion. In conclusion, ‘Society
based on injustice cannot survive for long’, let's hope we see justice once for all which is denied to 200 million
smart street men and women of Pakistan for long.
Barrister Amjad Malik is a
human rights lawyer, and chairman of Association of Pakistani Lawyers
practising in UK and Pakistan
24 April 2017
|