Panama Papers: Fair Criticism Of Judicial Act Or Contempt?
The Panama Papers case attained finality on November 7, 2017 after the Supreme Court of Pakistan decided upon the review petition filed by ousted Prime Minister Nawaz Sharif and his family.
It has been an interesting year-long journey, from November 2016 to November 2017: with a packed-to-capacity courtroom hearing the Panama trial in which the sitting premier was dismissed, and with Nawaz Sharif, reposed at that time, taking out a rally across GT Road asking, “Why was I removed?”
At its outset, the case was setting new precedents as opposed to following old ones.
Proceedings under Article 184(3) and 187(2) of the Constitution are by definition unique and empower the courts to address controversies in the most effective manner to achieve justice. These two Articles empower the apex court to assume jurisdiction in matters of public importance and further broaden the judges’ powers to adjudicate upon issues of disqualification along with prescribing the procedure for doing so.
Hence, there were many firsts in the July verdict. The court gave a whole new dimension to the definition of the word “assets.”
For accounting experts, this came as a surprise. They expected the judges to consider the aspect of materiality as opposed to interpreting the words liberally. But what they did not realise was that the court was interpreting the term to determine its applicability in the case of a Member of the Parliament, who is bound by a strict criterion laid down in Article 62 of the Constitution.
A Member of Parliament is placed on a higher pedestal as opposed to a common citizen. Those criticising the definition ascribed to the word “assets” must understand that it was viewed specifically in the context of Parliamentarians. Therefore, the definition is not applicable to the masses.
The review judgment also reinforces the point that Sharif’s case is different from any other in the country.
In the past, superior courts of Pakistan have dealt with many cases involving unique propositions and have passed many innovative judgments.
Let us look at the example of Lahore High Court’s Chief Justice Mansoor Ali Shah. Recently, while deciding a petition challenging the construction of the Signal Free Project Corridor in Lahore, he declared the Lahore Development Authority (LDA) to be acting illegally, referring to it as a tool used by the provincial government to bypass local governments. Then there was the Supreme Court’s verdict that declared all decisions of the Prime Minister not taken during cabinet meetings as illegal.
One can certainly disagree with the judicial reasoning, but to doubt judicial intent is certainly not the right way to criticise the Panama Papers case.
That said, there are nonetheless a few areas in the review judgment that could have been elaborated for clarification, such as providing details of the exact edition of Black Law’s Dictionary used for defining terms.
Tacit approval of the minority judgment by the majority could also have been easily avoided. The language of the judgment could also have been improved and words such as ‘neck deep’ could have been replaced to make the judgment more acceptable and admirable.
More so, appointing an ‘amicus curiae’ (friend of the court), who specialises in accountancy matters, would have helped the court in arriving at a more incisive and acceptable definition of the word “assets.”
A judgment that interprets a political question is likely to invite critique, but those complaining should remember that there is a fine line between fair comment and contempt. The debate needs to be put to rest. The Supreme Court had the legal domain to send an elected official home and it did so through a much-required judgment, which is expected to set straight the direction of accountability in Pakistan.
An earlier version of this article appeared on Geo. Republished here with permission.
The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any organisation with which he might be associated.