Opinion: Can we agree on what’s right?

WEB DESK: Protests by the opposition political parties, that they promise to continue, are an expected outcome. Ever since the Panama leaks, demands for investigating Pakistanis’ suspect investments in ‘offshore’ companies, especially by the Prime Minister and his family members, were gaining momentum, but the concerned state authorities didn’t visualise the consequences of their neglect.

On August 27, the Registrar of the Supreme Court turned down a petition filed by Jamaat-i-Islami (JI) which requested the Supreme Court to declare illegal under Section 9 of the National Accountability Ordinance the transfer of national wealth for investment in ‘offshore companies’, because of the petition’s being ‘frivolous’ in the light of Order XVII Rule 5 of the Supreme Court Rules 1980.

On August 30, the Registrar’s office also rejected on the same grounds (ie it’s being ‘frivolous’) the petition filed by Pakistan Tehreek-i-Insaf (PTI) seeking the disqualification of the Prime Minister, his son-in-law Captain Mohammad Safdar (Retd) and Federal Finance Minister Ishaq Dar, for their undeclared/illegal investments revealed by the Panama Leaks.

A notable aspect of rejection of PTI’s petition was that it was rejected just a day after its filing though, according to PTI leaders, the petition comprised over 200 pages of evidence and conclusions based thereon; surely, the honourable Registrar of the Supreme Court studied them before concluding that the petition was ‘frivolous’.

According to press reports, the reasons the honourable Registrar cited for rejecting PTI’s petition were that, to begin with, the petitioner had approached the Supreme Court without first approaching an ‘appropriate forum’ under the law, and also didn’t give any justification for not approaching these forums – the ‘concerned’ High Courts.

Secondly, the petition invoked the extraordinary jurisdiction of the Supreme Court under Article 184(3) of the Constitution dealing with ‘enforcement of fundamental rights’ but, given the precedent set by the Zulfikar Mehdi vs PIA case of 1998, a case (like PTI’s petition) wherein a court decision could affect only the rights of an individual or a group of individuals, is not a case of ‘public importance’.

According to the honourable Registrar of the Supreme Court, the verdict in Zulfikar Mehdi vs PIA case set a precedent whereby the term ‘public importance’ should be viewed with reference to the freedom and liberties guaranteed under the Constitution, and only their violation in a manner that creates doubts about their enforcement justifies corrective legal action.

Surely the JI and PTI petitions were rejected in accordance with the existing laws but raised serious questions over the clarity and sufficiency of the existing laws that the legislators and the legal fraternity must address; Supreme Court’s rejection of the May 13 government request for forming a commission to probe the Panama Leaks on these grounds was a pointer in this context.

The debate over Panama Leaks has established beyond doubt that this issue that exposed massive financial crimes, deserves investigation by an inquiry commission consisting of Supreme Court judges that is also empowered to punish the guilty. That’s what the draft of “Panama Papers Inquiries Act-2016” tabled by the combined opposition in the Senate is focused on.

Besides focusing on Panama Leaks, this bill includes clauses aimed at ensuring that future inquiry commissions don’t prove as ceremonial as was the case with previous inquiry commissions. But PML-N’s tabling of a hugely differing bill before the National Assembly to amend the relevant laws foretells stagnation, not expeditious resolution of the Panama Leaks issue.

Before this development, what forced JI and PTI to file petitions with the Supreme Court was the PML-N’s non-co-operation in rationalizing the Terms of Reference (ToR) for the inquiry commission even after the Supreme Court’s adverse remarks on the ToRs submitted by the government. JI’s and PTI’s frustration over the rejection of their petitions is therefore justified.

For understandable reasons, the bill tabled by PML-N isn’t focused on Panama Leaks, and according to its clause 4, the commission shall have the powers of a “civil” court under the Code of Civil Procedure Act V of 1908, and it may send cases to “magistrates” having relevant jurisdiction. PML-N’s parliamentary majority could turn this bill into a law that keeps the Panama Leaks issue unresolved indefinitely.

The possibility of the passage of the bill tabled by the PML-N therefore requires both JI and PTI to file an appeal against the decision of the Registrar’s office, which they have already decided to do. But whether their efforts will succeed is uncertain, given the nature of the objections raised by the Registrar’s office on the petitions these parties had filed.

The initial reaction of the PTI leadership was that the questions raised by the Registrar’s office “ought to have been decided by the court, not the Registrar’s office” and that “we have every reason to believe that the Registrar has acted in bad faith” – reactions that should be backed by a legally plausible response to rejection of their supposedly evidenced-based petitions.

PTI has announced that a team headed by its senior legal counsel Hamid Khan is finalising its appeal against the Registrar’s rejection of its petition filed by Imran Khan. PTI must realise that, given the profile of the existing laws, Panama Leaks issue must be pursued very carefully to assist the Supreme Court resolve this issue that is tarnishing the country’s image.

To begin with, according to the Oxford dictionary of the English language, the word ‘frivolous’ means paltry, trifling, trumpery, lacking seriousness, or silly. PTI’s legal experts must examine whether any or all of these meanings of the word ‘frivolous’ apply to PTI’s petition because it’s being labelled as such has serious implications for the future.

Secondly, which is the ‘concerned’ High Court with the jurisdiction for trying a case alleging questionable conduct of the Prime Minister and the Federal Finance Minister? Thirdly, whether a court decision indicting the Prime Minister on charges of tax-evasion and illegally transferring wealth out of Pakistan, will ‘protect’ only the rights of an individual or a group of individuals?

Finally, is the alleged accumulation of tax-evaded wealth by the Prime Minister, his family members, and the Federal Finance Minister, and its investment abroad not an issue of ‘public importance’, and doesn’t such resource outflow imply ‘invasion’ of constitutionally guaranteed right of the public to benefit from the tax evaded thereon, as well as from its deployment in Pakistan?

Corruption of virtually every sort, tax-evasion, and flight of capital now characterise Pakistan. It is time all the pillars of the state acted with utmost responsibility by agreeing on eliminating these crimes by investigating them in an unquestionable manner, and showing totally unbiased commitment to punishing the committers of all these crimes.