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The deeper points

Published Jan 10, 2017 01:10am


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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

The views expressed by this writer and commenters below do not necessarily reflect the views and policies of the Dawn Media Group.

Comments (14) Closed

Muzaffar Ali Jan 10, 2017 03:34am

Mr Soofi, you have written a profound analysis on the case....never thought of it this way....."seeing what others don't see".

Hope to hear more of you on this enlightened newspaper.

salman Jan 10, 2017 05:22am

Judges should not be investigating, but what choice do they have if they want to get to the truth, when nab, etc are not doing their job?

You've also confused a layman like me with talk of law v morals. I always thought the basis for all law was morals/ethics? I mean how many immoral laws are there

Shahid Jan 10, 2017 07:41am

If we go by the norm that the court must follow the law irrespective of morality involved, then in this case law is very clear that as the Sharif family have accepted the ownership of Mayfair flats or that of the companies which own them - at least since 2006 onward - then the burden of proof rests with them. Secondly, if and as it is obvious that prime minister's defense has argued it's case totally different to the two versions which were given by him in his two speeches, of which one was to nation and second in the parliament. So if you consider his statements in the court of the law to be true then he lied to the nation and in the parliament. And if told truth in one of those speeches then he must by lying in the court of the law. So this fact in itself disqualify him under 62 & 63 as member of parliament.

There is no question of morality here. The question of morality was more to do with, if the prime minister resigns or not and that part is gone now.

Muhammad Qurban Jan 10, 2017 08:15am

Panama leaks allege that some individuals acquired property abroad. The individuals concerned do not dispute the fact. PTI and others allege that there is some foul play in the the transactions. Political influence practically paralyses the investigating agencies. Is it right for the public to expect the SC to help them unearth the truth by asking the accused to submit evidence to establish legalities of the purchases?

Alba Jan 10, 2017 09:16am

Anyone who has viewed 300 episodes of the television show - Law and Order - knows more about criminal law . It is the only TV show the majority of policemen in America saw as reality. "The only real cop drama on television."

Tariq Shamsi Jan 10, 2017 10:38am

The author perhaps forgets that regarding qualification of a Member of Majlis-e-Shoora (Parliament), Article 62(g) of the constitution states, 'he is sagacious, righteous and non-profligate, honest and ameen, there being no declaration to the contrary by a court of law'. We wish the PM well, but if the court finds he has lied to the public and to the Parliament then what happens?

Tahir Malik Jan 10, 2017 10:38am

There is another angle to it which you failed to mention; Shall we allow rulers to do corruption and then get away with it by not launching any inquiry to it. FIA, FBR and NAB are supposed to work for state, not corrupt rulers. Here's the important part, are their enough basis to have inquisitorial proceedings in this case?Yes. If Imran Khan has got to do all the investigation, then what's point of having these institutions. If we allow people with dubious wealth and character and no moral values to rule us, society becomes bound to be doomed. Society survives on the values so does democracy. If it does not have any value, then it becomes just a mean to serve rulers and their greed.

ant Jan 10, 2017 11:01am

Bottom line is that majority of our leaders from major parties are shameless. They are morally not suitable to lead this nation, but hide behind lack of evidence against their plundering of nation's wealth. Unfortunately our illiterate public continue to vote for these thieves and they know it.

kanwarch Jan 10, 2017 01:50pm

The CEO of the country should come to the court and come clean and explain to the court how his children have accumulated so much money and how the family is gifting each other land and money in millions with out telling anybody source of that income. Simple. It is not about morality or anything else.

Saqib Jillani Jan 10, 2017 02:28pm

A balanced analysis that sums up some of the issues confronted by the country. However this is a superfluous analysis that does not go in detail of the issues. The author has failed on many counts to present the reasons why this polarization is a problem for progress. As a lawyer much more is expected from such writings

Muhammad zahid Jan 10, 2017 03:14pm

Nice analysis...I say burden of proof lies on both parties. First the PTI must prove accusations against sharif's family filed by them, then sharif family must prove their allegations wrong. Simple is this.

rm Jan 10, 2017 05:14pm

Maybe not for common man but for a government office holder inquisitorial proceedings is the answer!

gurjant Jan 11, 2017 12:07pm

yeah according to this article being in a state of confusion can be good you cannot take a decision because you are in a dilemma one think i like in this is that court cannot decide on the sole point of morals but in some cases they also have to consider the morals because under every law there is a moral that has developed it

Parvez Jan 11, 2017 03:41pm

Nicely said.