The Supreme Court of Pakistan has delivered its judgement in the Panama Papers case. What’s next?
In a much anticipated decision, the Supreme Court of Pakistan has delivered its judgement in the Panama Papers case of corruption against Prime Minister Nawaz Sharif. Rather than delivering a final judgement, the Court called for the creation of a joint investigation team (JIT) to explore thirteen inquiries concerning corruption allegations against the Sharif family over the next sixty days. While the Court resisted the temptation to unilaterally disqualify a democratically-elected Prime Minister as it once did with Yousef Raza Gilani, the continuation of these investigations demonstrates the Court’s desire to address corruption in the civilian governance of Pakistan.
Two major points can be drawn from the decision. First, rather than overturn its prior decision in Prime Minister Gilani’s cases (including Contempt Proceedings Against Syed Yousaf Raza Gillani, and Muhammad Azhar Siddique and others v. Federation of Pakistan and others), the Court reaffirmed its right to unilaterally dismiss a serving prime minister but limited this right to cases where the allegations against the prime minister were “admitted or undisputed.” Second, the Court’s suggested composition of the investigation team includes military officials, which falls in line with the Court’s gradual ceding of control over civilian affairs to the military in order to ensure the judiciary’s own survival.
At the core of this case are allegations that Sharif and his family illicitly sold various factories and steel mills in Gulf countries as well as purchasing four luxury apartments in London. The legal and factual question centers on whether the Sharif family used “ill-gotten or laundered money” in order to conduct these transactions and whether they lied about these transactions. As with many politicians whose off-shore accounts in Panama and the Bahamas were revealed by the International Consortium of Investigative Journalists, there remains a question of whether the funds in each account were a product of criminal or corrupt action based on the domestic law of the various states.
The same is true for Pakistan, which is why the Supreme Court mandated the creation of a JIT to parse out the legality of various transactions that could explain the source of offshore funds. The Supreme Court emphasized its role as a forum for law rather than a fact-forum, which is why it mandated the creation of the JIT to collect facts and present them to the Court in sixty days.
The battle against corruption has been a major justification for the empowerment of judiciaries across South Asia. When discussing the constitutionally-designated division of powers between the three branches of government, the judiciary is often highlighted as the only branch that can tackle the problem of corruption in the political ranks. However, as legal scholar Maryam Khan points out, there are unreasonable expectations for the Court to deal with the issue of corruption, which is a problem that often requires political solutions, not legal ones.
In order to meet unreasonable expectations, the Court has exercised hyper-activism in its recent history as evidenced by the Gilani cases. In those cases, when Prime Minster Gilani refused to follow a court order concerning a criminal investigation in Switzerland, the Court unilaterally dismissed the prime minister. The power to disqualify the prime minister has been hotly debated, but the constitution seems to delegate this right to either the Speaker of the House or the Election Commission.
In the Panama-Gate decision, the Supreme Court affirmed its ruling from the Gilani case, but differentiated the accusations against Prime Minister Sharif and Prime Minister Gilani. The Court explained that while the accusations against Sharif have not been fully proven, the accusations against Gilani had been determined with finality. This distinction allowed for the Supreme Court to uphold its prior decision with Gilani, while refusing to disqualify Prime Minister Sharif.
A second way that the Court has tried to meet unreasonable public expectations is by falling in line with military demands. In the past, the Supreme Court created doctrines like necessity to legitimize military coups but this changed when Chief Justice Iftiqar Chaudhry successfully confronted and expelled Pervez Musharraf’s military dictatorship in 2007. However, in 2015, when the military demanded the creation of military tribunals to prosecute terrorists and abdicate the role of the nation’s civilian courts, the Supreme Court upheld the 21st Amendment which gave them the right to do so. And now, when the military wishes to hold the sword of Damocles over Nawaz Sharif and ensure that he remains pliant to military demands, the Supreme Court reserved two out of the five positions on the JIT for members of the Army and its intelligence services.
Many of these concessions to the military are a result of some form of duress or self-preservation. Justices on the Supreme Court have faced direct and indirect threats in the past to not only themselves, but the institution of the judiciary generally. Therefore, ensuring a place for military officials on the investigation team examining Nawaz Sharif’s history can be seen in the context of judicial concessions to military demands.
The inclusion of Army officers in a corruption investigation that could lead to the disqualification of the Prime Minister is somewhat disturbing when considering Pakistan’s history of coups. However, the inclusion of these officials could also be attributed to the fact that the Court held in its decision that there is an institutional malaise in Pakistan’s investigative agencies. The Court noted that that when the Prime Minister appoints the heads of the various agencies charged with investigating allegations against him or her, those same agencies are now unwilling or unable to take appropriate action the Prime Minister.
The Panama-gate controversy highlights many of the interrelated issues that are at the center of Pakistan’s political and legal evolution as it enters its third consecutive term of democratic rule. This case impacts civilian-military relations, judicial-executive relations, the rule of law and corruption, as well as the power of the judiciary. Some have claimed that the Court has merely kicked these accusations further down the road without making any actual decision. However, the inclusion of the military officials in the JIT and the affirmation of the Gilani decisions are definitive rulings that require further examination.
Waris Husain is a professor of law in Washington D.C. and a writer on legal and U.S.-Pakistan issues.