The Supreme Court (SC) is going to resume hearing the Panamagate case on Nov 15. According to Barrister Farogh Nasim, the recently-sidelined vice chairman of the Pakistan Bar Council (PBC), the apex court is fully empowered to probe the allegations thrown up by the Panama Papers.
However, there is another view that contends the SC lacks jurisdiction to take up such matters. Dawn spoke to Kamran Murtaza, former president of the Supreme Court Bar Association (SCBA) and newly appointed PBC spokesperson. Mr Murtaza suggested that instead of the judiciary, parliament should investigate the allegations through a high-level committee.
Q: How do you view the Supreme Court’s decision to take up the petitions filed by Pakistan Tehreek-i-Insaaf (PTI) and others seeking an investigation against the prime minister and his children?
A: I believe in accountability, and that it should begin from the top. However, I have certain reservations over the admissibility of the petitions currently being heard by the apex court.
The SC entertains two types of petitions; appeals against high court verdicts, and petitions filed under Article 184/3 of the Constitution [which deals with questions of public importance with reference to the enforcement of fundamental rights]. However, there are some restrictions; under the article, the apex court can only take up matters related to fundamental rights. In my view, Panamagate is not a matter of fundamental rights, but a political issue and therefore needs to resolved politically.
Q: Both the PTI as well as the PML-N appear to be willing to accept the jurisdiction of the Supreme Court in the matter. In such circumstances, how can one object to the proceedings before the apex court?
A: We should also keep in mind the context in which the Supreme Court entertained the petitions. At the time, one party was afraid of an imminent sit-in, while the other one was seeking a dignified way out – to call off the protest – as they had not expected such harsh treatment of their political workers by the law enforcement agencies.
Subsequently, both the parties accepted the apex court as an arbitrator in the matter. If two persons go to a civil judge and ask him to pass a verdict in criminal matter, would the consent of both parties change the jurisdiction of the civil judge? The answer is no. In case the Supreme Court admitted such political petitions, it would set a precedent for future litigants. How can the apex court refuse future petitions if it is accepting this one now?
Q: Last year, a commission headed by the then-chief justice looked into the allegations of rigging in the 2013 elections. Why can a similar commission of the apex court not take up the Panamagate case?
A: I was also opposed the constitution of the inquiry commission to probe alleged rigging. In my view, such matters must be heard by elections tribunal under Article 225 of the Constitution and the apex court can hear appeals against the orders of the tribunals. The legal community didn’t praise the Supreme Court for probing these allegations; ever former chief justice Nasirul Mulk, who is a thorough gentleman, was criticised. I think political parties would criticise the Supreme Court even after the conclusion of Panamagate case, therefore, the court should get rid of the matter as soon as possible.
Q: Institutions such as the National Accountability Bureau (NAB), Federal Investigation Agency (FIA), State Bank of Pakistan (SBP), Securities and Exchange Commission of Pakistan (SECP) seem reluctant to probe the Panamagate affair, so how will the Supreme Court investigate the allegations?
A: It will be very difficult for the apex court to investigate the allegations through ‘unwilling’ investigation agencies. This would create embarrassment for the worthy judges, as well as bringing the institution into disrepute. When investigation agencies and other relevant organisations are not ready or lack jurisdiction to probe the allegations, how can the Supreme Court ask them to investigate something that existing laws do not permit them to.
Q: Should the allegations left un-attended, or is there any way forward for a transparent probe?
A: Since this is a politically motivated case, it needs to be resolved politically. Parliament can form a high-level committee consisting of eminent parliamentarians from both houses – Senate and the National Assembly – from all major political parties. The committee can compel investigation agencies to conduct a transparent probe. In case the committee fails, then the politicians can be blamed.
But if the Supreme Court cannot deliver, this sacred institution would face a lot of unnecessary criticism.