Category Published Date
Election 18 January 2017

The newly-constituted five-member bench of the Supreme Court of Pakistan is hearing the Panamagate case on a day-to-day basis to expeditiously conclude this complex case. However, instead of promptly solving the so-called Panama riddle, this case has given rise to a number of legal complexities and controversies in the country. It has just opened a Pandora’s box of allegations and counter-allegations. Everyone is openly discussing and commenting on this free-for-all case. In the absence of any definite legal approach adopted by the apex court so far, apparently this case is heading towards a blind alley. Thus, the propriety and constitutionality of this high-profile case is also being question. Since the apex court has yet not handled such a complex case while exercising its original jurisdiction under Article 184 (3) of the Constitution, therefore it was being feared that there would arise some procedural complexities in this case. The ‘due process of law’ essentially requires a court of law to fulfill some legal formalities under all circumstances. To begin with, a criminal case generally originates in a criminal trial court, having power to try such case, upon an investigation report submitted by a competent investigative agency. Thereupon, the trial court formally prepares a charge-sheet against the culprit and ask the prosecution to adduce evidence. After offering the culprit a full opportunity of his defence, the court passes its verdict. Similarly, the aggrieved party is also provided a legal right to appeal. In fact, at the moment, some of the aforementioned legal elements are missing in the Panama case. Consequently, the petitioners are exclusively shaping the contours of this ‘free-floating’ case. The Constitution of Pakistan precisely explains the classes of various constitutional courts and their respective jurisdiction in the country. Moreover, Article 175(2) of the Constitution states: “No court shall have any jurisdiction save as is or may be conferred on it by the Constitution or under any law”. The Supreme Court of Pakistan is the highest constitutional court in the country. Constitutionally, it can exercise its Original Jurisdiction (Article 184), Appellate Jurisdiction (Article 185), Advisory Jurisdiction (Article 186), and transfer any case form one High Court to another (Article 186-A). Surely, all the constitutional courts in Pakistan, including the apex court, are always supposed to exercise their powers within the defined frame-work of the constitution. Article 184 (3) states: “Without prejudice to the provisions of Article 199, the Supreme Court shall, if it considers that a question of public importance with reference to the enforcement of any of the Fundamental Rights conferred by Chapter I of Part II is involved have the power to make an order of the nature mention in the said Article”. So this constitutional provision empowers the apex court primarily to effectively safeguard the fundamental rights of the citizens in Pakistan. There has been an observable tendency of stretching the jurisdiction of the apex court under this constitutional clause to the extent of taking cognisance of diverse legal and constitutional matters on the basis of wider interpretation of the fundamental rights. This practice was best observed during the chief justiceship of Iftikhar Muhammad Chaudhry. In fact, Article 184 (3) has been one of the most widely debated constitutional provisions in Pakistan. At times, it has also been rather controversial. Therefore, for some years, the apex court has been abstaining from excessively exercising this constitutional jurisdiction by gradually distancing it from the so-called Iftikhar Chaudhry doctrine. Article 184 (3) essentially confers an extra-ordinary jurisdiction on the Supreme Court. Though not exhaustively, this constitutional provision precisely provides the scope and procedure for the exercise of this extra-ordinary jurisdiction. The scope and powers of the apex court under this provision are somehow co-extensive with the powers of a High Court under Article 199 of the Constitution. The only difference being that the apex court can also take a suo motu action while a High Court can only act upon the application made by an aggrieved person. So, while taking cognizance of any matter of ‘public importance’ relating to the ‘enforcement of fundamental rights’, the apex court can exercise the same jurisdiction as does a High Court under Article 199 i.e. the Writ Jurisdiction. More precisely speaking, Article 184(3) requires the apex court to exercise an original jurisdiction what exactly does a High Court under the Article 199(1)(c). This constitutional provision empowers a High Court to make an appropriate order giving directions to any individual, authority or the Government for the enforcement of the fundamental rights enshrine in the Constitution. Therefore, logically, under Article 184(3), the apex court is primarily supposed to issue appropriate directions to the public officials, state functionaries with respect to any matter of public importance involving the fundamental rights of individuals. So, in a number of suo motu actions taken by the apex court, we have observed how it summoned and ordered certain state and public functionaries to perform a particular legal duty. The case of the minor girl Tayyaba is latest instance. Observably, in these cases, the apex court has mostly adopted the typical inquisitorial legal approach instead of the adversarial one to hold a full-fledged trial. Article 187 of the Constitution gives ample powers to the Supreme Court to do complete justice in any case or matter pending before it. However, at the same time, it also imposes the jurisdictional restrictions, as provided by Article 175(2), on the exercise of such powers. Therefore, just like any other organ of the government, the apex court is also supposed to remain within its defined constitutional parameters while exercising its powers. Pakistan has a written constitution. And obviously the Article 184(3) is also not mere a legal fiction. In a landmark verdict delivered by it in 2013, the Supreme Court barred the High Courts form taking suo motu actions under article 1999 by requiring them to remain within their constitutional ambit. Reading the aforementioned constitutional provisions together with Article 10-A, which strictly prescribes the due process and fair trial, hardly allows the apex court to hold a trial. So in this particular context, the current panama proceedings in the apex court also need serious consideration. Strictly remaining within the legal ambit of Article 184(3), the apex court has limited options to properly dispose of the Panamagate case. Firstly, the apex court may itself form an inquiry commission to precisely probe the allegations leveled by Panama Papers. But in that situation, the apex court will again have to resort to an adversarial process to finally conclude this case once the report of such inquiry commission is submitted. Secondly, it may also direct the Federal Government to form an inquiry commission after providing some guidelines to frame ToR’s for the proposed inquiry commission. Thirdly, it can also direct an investigative agency like NAB or FIA, which has the required legal and institutional capacity to tackle it, to formally probe and concluded this case. If such agency finds any substance in these allegations after a thorough inquiry, then an appropriate criminal court can hold a trial to conclusively determine the legal and factual questions involved in this case. At this stage, the petitioners in the Panama case should also not insist on PM’s disqualification under Article 62 and 63 of the constitution on the basis of alleged contradictory statement made by him. For this purpose, they should first approach the appropriate legal forum i.e. the Election Commission of Pakistan. In case the ECP does not properly entertain them, then they can approach the apex court, or even invoke the writ jurisdiction of a High through another constitutional petition. One wonders why the defence counsels in the Panama case not raise any objection regarding the maintainability of the suit, since they apparently have a plausible or reasonable legal explanation for the offshore properties admittedly owned by their clients? Now, in order to avoid legal complexities and future controversies in the Panama case, the five-member bench of the apex court should carefully evaluate and answer all the underlying questions relating to maintainability, jurisdiction and procedural nitty-gritty of this case. Certainly, the accountability of the Prime Minister of Pakistan is absolutely desirable, but at the same time, the due process of law should also be advisable.

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