Aspects warrant consideration in Panama Papers Proceedings
1. Having analytically observed the Panama Papers proceedings through media coverage, merits of the case drew my attention being a law student. Pertinent aspects are being presented for consideration by the prestigious institution responsible for dispensing justice (bench/bar). Justice Asif Saeed Khan Khosa expressed his gratitude to Makhdoom Ali Khan, saying that his arguments were exceptional and it was a treat to hear them. My only regret is that the courtroom is so small; otherwise I would have directed all young lawyers to come and listen to the counsel. It would have taught them what advocacy is all about. (Dawn Isd 20 Jan2017)
2. On the same analogy, impending exceptional verdict by the SC bench may change plight of the nation into delight, as to what adjudication is all about, by addressing following aspects: -
• That, on what constitutional ground petitions on Panama Papers leaks are admitted in the SC, though PM himself has not surfaced in the panama gate episode, thus entailing normal judicial process?
• That, is it constituted as investigative bench to probe any link between PM & his family? Or, is it to adjudicate having heard pleading from either side about legitimacy of owning four Mayfair flats, whether acquired through viable means, though revealed through Panama Papers Leaks?
• That, is adjudication by SC bench allow any right of appeal, because procedure in a trial court is entirely at variance.
• That, one may contest that SC is not a trial court, making SC jurisdiction objectionable. Thus, on this single pretext, whole structure of the case could be brought down.
• That, legal propositions presented by counsel Raja is the extension of same defense strategy, as already exhibited by counsel Makhdoom while presenting exceptional arguments, that won him admiration of the bench.
• That, petitions seeking disqualification of PM constituted a case of public importance, as it involved fundamental rights of the people of Pakistan. .That, since fundamental rights of the general public are involved, hence petitioner's case was not a classical case of quo warrantto (which asks a person to show under what authority an office or franchise is held, claimed, or exercised).
• That, Ex CJ, A.R. Cornelius at a symposium on the role of judiciary,
stressed the need of expounding and spreading the real meanings of the
fundamental rights among the people. "In my view, fundamental rights guaranteed under constitution, are often too narrowly regarded as being aimed only at control of actions by public authorities or as a check on laws made by the legislatures. They are indeed commandments, which call for general observations by the members of the public in their relation with each other".
• That, writ quo warranto may not be relevant in this case because it is a
question of disqualification of the prime minister in relation to public
importance and fundamental rights of the public, because he holds the
office of the chief executive and represents the federation.
• That, argument made by defendant counsel "since disqualification was being sought by the petition, the question of quo warranto would apply", is inconsistent with the prevalent position stated as above.
• That, SC would have to consider what standards to apply for disqualifying
an elected member in a petition moved by invocation of Article 184(3) of
Constitution, which empowers the court to enforce citizens’ fundamental
• That, to knock out Prime Minister, the court had to first disqualify him as a member of the national Assembly
• That, whether PM be disqualified or parliamentary membership be
terminated, for the same out come by default, is synonymous to
culpability delineated with "egg or chick first" scenario.
• That, how to offset the consequence of non performance of due moral
obligation by PM, as it is more of a case of honesty than evidence. (Reported in Dawn Isd on 16 Feb 2017)
• That, SC could adopt an inquisitorial approach if it felt appropriate, but an
inquisitorial approach in public interest litigation stemmed from the
realization that matters of general public importance might require active
court intervention through a fair trial. Is it not fair intervention by SC bench, before which argument is being presented?
• That, while enforcing fundamental rights, the court will consider other
competing rights also guaranteed in the Constitution, such as Article 10A
that asks for due process and a fair trial,(fair investigation in process?) Article 17 that ensures freedom of association (family association disclaimed?) and Article 25, which guarantees equality of citizens. (PM being no exception?) Let
hearing be completed first, that may not require any further trial.
• That, ownership of four flats in London has been publically accepted by
son of PM through media?
• That, documents for ownership of four London flats have not been
presented? Is administrative order required for provision of the same? Has
court sensitized the need of producing documents required?
• That, in exercise of its constitutional jurisdiction under Article 184(3), the
apex court does not adjudicate question of fact, but rather, operates on
the basis of admitted documents.
• That, should question of fact be ignored at the altar of admitted documents only, even if required documents are denied to the court?
• That, PM was not saying that the apex court could not decide disputed
questions of fact, but was pleading that if the court decided to adjudicate,
it would have to adopt the same procedure as used by other courts.
• That, defendant counsel is deceitfully confusing the issue. Implying that
consequent to impending adjudication, fair trial is entailed. Thus putting
jurisdiction of the court to question through this contention.
• That, trial included framing of issues, requirement of documents to be
proved, calling of witnesses and their cross-examination etc, reminding
judges that they could not pick and choose.
• That, defendant counsel has wittingly carved this argument, for the
apparent coherence, though inappropriate in present context.
• That, Roosevelt Hotel (New York) and Scribe Hotel (Paris), was also
owned by the national carrier, PIA, through offshore companies.
• That, since no parity exist for assets owned by the national carrier vis-a vis assets revealed through Panama Papers. So, it’s irrelevant argument.
• That, making investments through offshore companies was not illegal, but the concealment of wealth and evasion of taxes was.
• That, how PM could be confronted with facts revealed through Panama
Papers Leaks for possessing overseas property through offshore companies by his family, not corroborating with their known sources of income.
• That, PM as son or father respectively, never had any influence, nor
consented, arranged, contributed, assisted, provided any guidance or
financial assistance, or knew any such development in his family, between
his father and his son, though not dependent on him.
• That, is there any conflict of interest i.e. official influence of PM over his
family matters? Is there complete, visible, verifiable evidence about his
non exertion of influence, which he might not have desired otherwise? What about role played by chairman NAB/FBR?
• That, what is legal status of letters admitted in SC , written by son
deceased Qatari ruler, presented through legal counsel of
son of PM, purporting to be consequential settlement of financial matter
between deceased father of PM and deceased Qatari ruler,
leading to acclaimed share (gift) consented verbally by father of PM and
ultimately traded off with UK property by son of PM, but daughter of PM
emerged as beneficiary (feb-july 2006) through bearer certificates?
(Reported in Dawn Isd 17 Feb 2017)
• That, what amount was disbursed by PM among his children? Does
returned amount by his son, is in harmony with his earlier disbursements?
• That, what source of income did son of PM utilize for sending 52 Crore to his father? As his father already denied any financial assistance?
• That, if citizens are left unprotected against infringement of their fundamental rights, who must act to address their concern?
• That, why mysterious situation has cropped up owing to emergence of following aspects during the court hearing:-
(1) Link is established for acquiring UK flats through Qatari letters that deceased father of PM had verbally instructed during his life time to late Qatari ruler, about intended disposal of 12M dirham cash investment, made with him in 1980?
(2) particular son of PM will be sole beneficiary of acclaimed cash investment with proclaimed Qatari business partner. Though, not even token receipt of cash investment is available?
(3) Same amount is traded off for property acquired in UK through proclaimed settlement with Qatari business partner?
(4) Since no transfer of amount took place, thus not involved any banking protocol. Is it not a concocted appendage of reverse production?
(5) Does any law, custom or tradition provide any precedence for "Will" to be construed on verbal instruction attributed to a deceased, but revealed after demise of that person?
(6) Whether onus of proof is on plaintiff or defendant, for the property obtained through the mode exhibited before the court?
(7) Is any further transaction for possessing four UK flats between son and daughter of PM is involved?
3. Defendant counsel argued that petitioners had failed to link PM to any wrong doing, nor found any culpability. Since no serious charge could be established against the PM except general allegations, there was no possibility of holding his children accountable for the allegations leveled by the petitioners. SC bench also regretted that the court was getting bogged down, describing the case as onion, that yielded a new surprise every day and "how shall we sum it all up"? (Dawn16 Feb 2017)
4. Is it the function of the bench to allow that onion ring expand manifold and let itself be bogged down (trapped) by confronting a new surprise every day, though
irrelevant howsoever? Or, averse that phenomenon by navigating the legal course (peeling off onion), and coming out of boggy situation for summing it up all on merit?
5. As per ex CJ A.R. Cornelius, "judge possesses very large powers to enquire into and decide matters of high importance between subject and subject, and between the subject and the state, and enjoys total freedom of expression of his views not only in regard to the case itself, but also in regard to the circumstances which have given rise to it, and even the nature and quality of the law which he is required to apply. Therefore, for a judge to be over conscious of the role that he plays in the country's affairs would be apt to detract from the quality of his work". (Dawn 19 Feb 2017)
6. If precedence gets carved by the impending SC verdict, implying that process described by PM family for acquiring over cease properties, was not warranting any legal recourse, owing to insufficient evidence against PM and his family involved in the panama case. Then, who would be held responsible for revoking trust of its people on the highest judicial forum, thus making this great country into a banana republic?
7. Ex CJ A.R. Cornelius outlined importance of the role played by judicial officers and emphasized, "There could be no higher role entrusted to a human being than that of implementing, with care and propriety, rules of justice. It must be remembered that a judge was always on the stage playing his role in full view of the public. The quality of his performance, when compared with the highest standards, was for the knowledgeable public to assess and not for him".