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The deeper points

January 10, 2017

THE Panama case has become a deeply polarising issue in our political discourse. On one hand is the PTI whose leadership has cultivated the impression that the disclosures made in the Panama Papers make a ‘closed and shut’ case. For Imran Khan and his followers, the Sharifs are all but doomed. On the other hand is the PML-N claiming that the PTI has failed to provide sufficient evidence to prove its allegations against the prime minister and his family. For them, the Panama case is only the latest embodiment of PTI’s politics of agitation.

A decision either way will be perceived as a failure to do justice by at least one group of citizenry. This erosion of the public’s confidence in our judiciary’s ability to dispense justice is deeply worrying. It is important for people to appreciate that the issue is not as simple as the PTI and PML-N might want us to believe.

The Panama case raises finer and more intricate points than many people realise. It is not just about the Sharif family or the accountability of our political elite as they are not the only two things that the case turns on. There are many additional factors the court must carefully consider before reaching a definitive conclusion.

For instance, there has been some confusion regarding the Supreme Court’s power to hold inquisitorial as opposed to the (conventional) adversarial proceedings. This may seem like a superficial question related to procedure. In substance, however, it strikes at the very core of our collective societal aspirations: are we, as a society, interested in getting to the truth? Do we want judges to go out, engage in fact-finding missions to find the truth? Or do we think that truth can also emerge in an adversarial proceeding where both parties present their evidence before a judge?

The Panama case has certain aspects that many don’t see.

Relatedly, should the burden of proof be on the party bringing a case? Ideally, yes. Anything to the contrary will only incentivise frivolous litigation. Filing cases will become easier and cheaper because petitioners need not provide evidence in support of their allegations. People will use legal proceedings as a tool to victimise, threaten or coerce their opponents. Surely, a procedural rule that allows innocent people to be dragged into courts like that is not socially desirable.

On the flip side, sticking to an adversarial rule that requires the petitioner to prove his case can prevent us from finding the truth particularly where the defendant is not forthcoming or the state’s machinery fails. This too isn’t socially desirable.

We are, thus, caught up with the complex question of selecting between an inquisitorial and adversarial proceeding that involves uncomfortable trade-offs. Both carry long-term implications that will shape future individual behaviour. The court might consider both ex post and ex ante effects of adopting one particular rule over another that will have little to do with the strength of PTI’s claim and/or the relative innocence of the Sharif family.

Similarly, there appears to be a general tendency in the public to conflate the law with morality. Contrary to perceptions, the Supreme Court is a court of law and not a court of morality; it is supposed to enforce the law and not a set of morals that some people agree on. The sooner people realise this, the less disappointed they will be.

Accountability is indeed a noble objective. While the contradictory and often evasive statements made by the Sharif family make their defence suspect, they do not constitute sufficient proof of wrongdoing. At best, they provide a moral basis but not a legal basis for the prime minister’s disqualification.

Let’s assume that the Supreme Court fails to unearth other concrete evidence against the Sharif family. Should the court send the prime minister home because he does not have the moral basis to continue? Or because the contradictory statements show something is afoul, though the court is not sure what that really is?

Any such decision will impinge upon democratic norms. Further, it would require judges to impute their moral judgement into the decision thereby setting a dangerous precedent. After all, it is not in the interests of our society for a group of unelected judges to impose their morality on the remaining population telling us how to live our lives. The Supreme Court is sure to be cognisant of this intricacy. Resultantly, it will find itself being pulled by law and fidelity to the text, on one hand, and morality and public pressure, on the other.

In short, the Panama case is not only about the Sharif family’s ill-gotten wealth. Instead, it touches upon some of the most fundamental aspects of any free and democratic society. One hopes that both parties and their followers appreciate that. All is not black and white.

The writer is a lawyer.

Published in Dawn, January 10th, 2017