As the leaks from the Isthmus of Panama poured in, to nick the words of honourable Justice Sheikh Azmat Saeed, ‘many an alabaster pedestals crumbled’ on being confronted with the irrefutable qualms of conscience and public morality.
Prime Ministers of Ukraine and Iceland buckled to the thinning ice, as did the Industry Minister in Spain, reminiscent of Faiz Ahmed Faiz’s couplet:
Sab taj uchhale jayenge
Sab takht giraye jayenge
All crowns shall be dislodged
All thrones shall be toppled.
This tumbling of crowns was in consonance with the collective morality of the developed nations, where when people are caught with their pants down, they do not make a display of their dishonour. For instance, the Japanese Prime Minister had resigned at the start of the decade, citing his failure to show leadership in the aftermath of the tsunami crisis.
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A little earlier, Michael Martin became the first Speaker in the last 300 years in Britain to take the exit, for his involvements in covering the MPs expenses scandal. At the turn of the millennium, the Scottish First Minister had likewise chosen departure following a row over office expenses.
But, the principles of integrity and rectitude are not for us. In a country where honour has led to many a murder, the consideration of honourably passing the buck has never pestered us. Thus was felt the need to enshrine Article 62 and 63 into our constitutional structure.
These Articles were constructs of a dictator: General Zia-ul-Haq. Prime Minister Sharif could never in his wildest have envisaged that one day the ghost of his patron-in-chief would come back to haunt him.
In the face of Nawaz Sharif’s unabashed obstinacy to budge, the opposition raised hue and cry. All doors were knocked; all avenues approached. Such was the furore it actually shook justice out of its slumber. ‘No wrong without a remedy’ it bellowed, and the petitions were allowed.
However, to what end!
During 26 full-day hearings spread out over 170 days, in a forum where being granted 26 minutes of audience is a privilege, the eyes testified to the protectors of Constitution roar at the infractions of law by the highest of quarters. Then, the ten-minute pronouncement ensued, and all the faults and failures of law were rendered naked for the world to witness.
The judgment really is a piece of art.
From the second paragraph of the first dissenting note (page 9), to the second paragraph of the Court order (page 544), it revolves a complete circle, and then stops at the point from where it had begun. The most it has to give is irony.
Posterity would read that the cognisance was taken by the Court "in the backdrop of an unfortunate refusal/failure on the part of all the relevant institutions in the country like the National Accountability Bureau, the Federal Investigation Agency, the State Bank of Pakistan, the Federal Board of Revenue, the Securities and Exchange Commission of Pakistan and the Speaker of the National Assembly to inquire into or investigate the matter".
They would also record the Court’s observation that the "ISI, MI or any other Agency like IB have no role to play in the political affairs of the country".
It would be observed that the Court was acutely aware that, "according to Article 90(1) of the Constitution by virtue of his being the Prime Minister… it is practically he (Nawaz Sharif) who appoints the heads of all the institutions in the country which could have inquired into or investigated the allegations".
And then it would be noted that the very same Court formed a Joint Investigation Team (JIT) comprised of these very institutions, and vested in it the responsibility to investigate the very matter which they had refused to investigate.
The judgment is also a piece of art in that, perhaps, for the very first time, someone has walked out dishonourably, and celebrated. Prime Minister Sharif has walked out with greater burden than with which he had walked into those corridors. The number game belies it.
All five judges concur that the matter involves question of fundamental public rights. There is also consensus that the investigative agencies have miserably failed to do their job. The five also agree that Prime Minister Sharif has failed to account for his assets. The rights of an individual were undisputed as well.
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Four of the five accede that the Court could either examine the evidence itself – as it had done in the dual nationality case and the fake degrees scandals – or it could alternatively vest the responsibility in the concerned investigate agencies – as was done in the NICL scandal, Arsalan Iftikhar case and the Haj corruption scandal.
Four of the five further acquiesce that for white-collar crimes, the truth has to be sieved from within "the shades of grey", since for these crimes the "direct evidence is seldom found".
It was further considered if the public speeches of the Prime Minister suffice as a criterion for adjudging him as truthful and honest or was that merely ‘political’ rhetoric. Deliberation was also afforded to the distinguishable nature of disqualification criteria (under Article 62 and 63) from the conviction criteria (under NAB Ordinance).
Justice Asif Saeed Khosa, in his literary genius, noted that if the Court restrains itself on procedural technicalities then "the message being sent would be that if a powerful and experienced Prime Minister of the country/Chief Executive of the Federation appoints his loyalists as heads of all the relevant institutions in the country which can inquire into or investigate the allegations of corruption, etc. against such Prime Minister/Chief Executive of the Federation then a brazen blocking of such inquiry or investigation by such loyalists would practically render the Prime Minister/Chief Executive of the Federation immune from touchability or accountability and that surely would be nothing short of a disaster".
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He further quoted Lord Reid "that the law may sometimes be an ass but it cannot be so asinine as that!" Apprehension was also displayed that if we do not adapt with the contemporary, the law would become Shakespearean ‘scarecrow’, acting as the perch for birds of prey, and not their terror.
Dilemmas must have followed: Public rights or an individual’s rights; examination by the Court or investigation by a commission; does the Constitution require a person being adjudged on his public dealings, or is the political unencumbered by legal morality; and lastly, disqualify first or convict first. Two favoured the former, three the latter, and the figures were drawn.
Faiz Ahmed Faiz died asking:
Mitt jae ge makhlooq tau insaf kero ge
Munsif ho tau ab hashr utha q nai detay
Would you do justice when the mankind has been annihilated?
If you are Just, why don’t you pronounce the verdict already?
Panama scandal case fell into the lot of NICL, Haj corruption and Arslan Iftikhar cases, wherein the Court of ultimate justice had ultimately failed to do justice. The ‘moulded’ and ‘improved’ truth was able to successfully lead justice into a ‘dark alley’.
Indeed, formulation of an ‘implementation bench’ has been requested, but is the JIT, comprising of the subordinates of the ‘cronies owing their loyalty to their masters to whom they are beholden’, really expected to achieve in two months what the Supreme Court, with all its authority and might, could not in over five months?
The concluding individual note in the judgment (favouring the majority view) ends with a prose from Allama Iqbal:
Soorat-E-Shamsheer Hai Dast-E-Qaza Mein Woh Qaum
Karti Hai Jo Har Zaman Apne Amal Ka Hisaab
Keen, as a sword in the hands of Destiny
Is the nation that evaluates its actions at each step.
Does a splintered wooden sword count?