ISLAMABAD: While there is much media hype surrounding the report the Joint Investigation Team (JIT) will submit on alleged money laundering by the Sharif family on July 10, one thing is sure: Prime Minister Nawaz Sharif will be given an opportunity to defend himself in the Supreme Court.
The order the five-member SC bench passed in the Panama Papers case on April 20 is self-explanatory as an operative paragraph of the 547-page judgement says: “...upon the receipt of the reports, periodic or final of the JIT, as the case may be, the matter of disqualification of respondent No.1 (Nawaz Sharif) shall be considered. If found necessary for passing an appropriate order in this behalf, respondent No.1 or any other person may be summoned and examined”.
However, legal experts envisage different scenarios of the court proceedings after the JIT submits its report.
There is confusion over the forum where trial of the PM or any other person will be held in case the JIT comes up with tangible evidence against them.
The Supreme Court bench comprising Justice Asif Saeed Khosa, Justice Gulzar Ahmed, Justice Ejaz Afzal Khan, Justice Azmat Saeed Sheikh and Justice Ijazul Ahsan had directed the JIT to place the report before it after completing the investigation.
“The JIT shall complete the investigation and submit its final report before the said bench within a period of sixty days,” the judgement said.
Post-July 10 scenarios being debated; Sharif will get to defend himself in SC
On sending a reference to the relevant forum for further proceedings, it said, “the bench thereupon may pass appropriate order for filing of reference against respondent No.1 (Nawaz Sharif) or any other person having nexus with the crime if justified on the basis of the material thus brought on the record before it”.
In the light of the apex court judgement, one can conclude that further proceedings against the Sharif family are very much connected with what the JIT may say in its report after a few days.
Renowned legal expert S.M. Zafar said that since the JIT was a ‘fact-collection’ entity, it would submit the compilation of facts to the apex court.
The Supreme Court, through the terms of references, had tasked the JIT with collecting evidence and, therefore, the investigation team must stick to its assignment only, he said. Should the JIT give an opinion, it would be tantamount to going beyond its mandate as its opinion might favour one or affect another party, he added.
He said that since two members of the five-member bench had already disclosed their mind by calling for disqualification of the PM, it was not likely that they would resume the bench. Subsequently, the three other members might take up the report and proceed with the case, he added.
Mr Zafar said that the court might provide copies of the investigation report to the petitioners and the respondents and invite their comments or objections.
After hearing the parties in the case, the court might pass a final verdict on disqualification of Mr Sharif or other persons, he said. The court may either disqualify the PM or exonerate him or send a reference against him to an appropriate forum.
The appropriate forum might be an accountability court or the special judge central, he said.
In case the Supreme Court, on the basis of available material, found that the PM was not honest and sagacious, it might disqualify him or send the matter to the Election Commission of Pakistan (ECP).
Earlier, former chief justice of Pakistan Iftikhar Muhammad Chaudhry had sent several parliamentarians home for contesting elections on the basis of fake degrees.
A senior official of the ECP said that the fake degree holders were sent home under section 78 of Representation of Peoples Act, which imposed three-year jail term and fine on a lawmaker for filing fake a statement before the ECP.
But the case of the PM was different as he had not submitted any false declaration before the ECP, therefore, the apex court might consider his case under Article 62 and 63 of the constitution, he said.
Kamran Murtaza, former president of the Supreme Court Bar Association, said that the JIT was formed under the order of the Supreme Court and, therefore, the court had regulated its proceedings and would also examine its report.
He said that the court would provide an opportunity of hearing to the parties, particularly those who might be affected by the investigation report. “It may order to make the report open at least for the parties in the case and then start hearing the matter,” he said.
Mr Murtaza was of the view that the apex court could not disqualify Mr Sharif as it would be against the principle of natural justice.
On the composition of the bench, he said that should the two members of the bench, on the basis of earlier dissenting note, recuse themselves from hearing the case, the chief justice might re-constitute the bench.
“If some respondents file an application seeking a large bench, the same bench would pass an order on the application,” he said. “The application may be forwarded to the CJP for appropriate order or may be dismissed by the bench”.
Former vice chairman of the Pakistan Bar Council Mohammad Ramzan Chaudhry said that the five-member bench had requested Chief Justice Mian Saqib Nisar to constitute a special bench to ensure implementation of the judgement. The chief justice could have constituted a bench comprising judges other than those who were in the five- member bench, but he formed the special bench comprising three judges of the same bench.
Mr Chaudhry said that the implementation bench would place the JIT report before the five-member bench, which might re-consider the case on the basis of the JIT report and the evidence already available with the bench.
Published in Dawn, July 7th, 2017