At the start of his opinion in the Panama case, Justice Khosa mentions the novel ‘The Godfather’ which he says was made into an acclaimed film. The original film was followed by another: ‘The Godfather Part II’. This sequel is widely regarded to be better than the original. Will the follow-up verdict by the Supreme Court in the Panama case enjoy a similar fate?
Before reading out the Order of the Court (the ‘court order’) last Thursday Justice Khosa observed that the judgment was more than 540 pages long and each of the five judges had recorded their own opinion on almost every issue raised. He requested people to make comments on the judgment after reading it. His request was ignored and a lot of ill-informed debate, speculation and celebration followed.
The court order states that it has been passed by a majority of 3 to 2. One of the majority judges, Justice Azmat Saeed, states in his additional note that he is in agreement with the conclusions drawn in the judgments of Justices Ejaz Afzal and Ijaz ul Ahsan. However, his additional note differs in two material respects with the court order and with these two judgments. In his note, the JIT is to include a representative of the Intelligence Bureau (IB) (paragraph 90). In the court order, this representative of the IB is excluded. Second, his additional note does not explicitly contemplate the establishment of a separate Special Bench of the Supreme Court to ensure implementation. In fact, reading his note in isolation, the impression is that the same bench (the phrase he uses is “this court”, paragraph 93) will examine the matter after the JIT report.
Regardless, it seems clear from the court order and from the other two majority opinions that a Special Bench is to be constituted. This Special Bench will receive periodical reports to be submitted by the JIT once every two weeks, and the final report of the JIT to be submitted within sixty days of the constitution of the JIT. The Special Bench may pass appropriate orders on the basis of the reports. In my opinion, it is clear that it is this Special Bench which will consider the question of disqualification of the prime minister upon receipt of the periodic or final reports of the JIT. There may be some confusion about this since it is not expressly stated in the relevant paragraph of the court order (paragraph 4) that it is the Special Bench which will adjudicate the question of disqualification. The only opinion which expressly states this is the opinion of Justice Ijaz ul Ahsan. I do not see how a bench comprising two judges who have finally adjudicated on a matter can have the same matter referred back to it. Therefore, it seems clear that the newly constituted Special Bench will decide all matters including the matter of disqualification.
Under the Supreme Court Rules, benches are constituted by the Chief Justice of Pakistan (‘CJP’). This is a matter in his discretion. The CJP will constitute the Special Bench in the coming days. What are the factors that may influence his decision? First, the two dissenting judges (Messrs Khosa and Gulzar) have already decided that, based on the available material, the PM should be disqualified. It would seem, therefore, that they cannot be part of the Special Bench which is to consider, inter alia, the question of disqualification.
Second, the majority judges have not expressed any final view on the matter. However, they have expressed views on the explanations offered to-date by the PM and his family. Justice Ejaz Afzal has noted that sufficient material has surfaced on the record “which prima facie shows that respondent No 1, his dependents and benamidars acquired assets in the early nineties and thereafter which being disproportionate to his known means of income call for a thorough investigation.”
Justice Azmat Saeed has stated that “The narrative, as presented by the Respondents, does not seem confidence inspiring…”. He further notes that documents providing a clear-cut explanation regarding title of the flats which should be in the custody of the private respondent who claims to be the owner have been “deliberately withheld” from the court. The most damning indictment comes from Justice Ijaz ul Ahsan who has held that “We may observe that the contradictory, discrepant and divergent explanations offered to us by the respondents, including Respondent No 1 have been found by us to be absurd, fanciful and ludicrous.”
In the presence of these observations, the CJP will need to assess whether any one or more of the majority judges should be part of the Special Bench.
Third, the size of the Special Bench will need deliberation. If a 3-member Special Bench is constituted which delivers a split 2-1 decision against disqualification, the net effect will be that 3 Supreme Court judges (the two dissenters in the decision of the original Bench and the single dissenter in the decision of the Special Bench) will have upheld disqualification and only 2 judges (the majority in the Special Bench) will have felt the PM can continue. Fourth, since the matter relates to the PM and therefore the entire federation, the question of representation on the Special Bench of a judge from one province which has not been represented thus far (Balochistan) will need careful consideration.
This matter has not yet concluded. Any celebrations by either side are premature. The petitioners sought disqualification based on the available record. The majority judgment held this was not possible. The explanations and narrative offered by the prime minister and his sons have also been rejected.
Whether we voted for him or not, our prime minister is the leader of the nation. He owes a duty to all of us to fully co-operate with the investigation and ensure all relevant material and information is disclosed. The Supreme Court has given him one more opportunity to provide a complete and credible explanation regarding the Park Lane Flats and other family assets supported by admissible evidence. Let’s see if he takes it.
The writer is a barrister and an advocate of the Supreme Court of Pakistan.
He has served as deputy and additional attorney general for Pakistan.