JIT report: What SC can do; what will it do?
 

https://www.thenews.com.pk/assets/up...2355_print.jpg ISLAMABAD: As the country awaits the JIT report on the assets of prime minister’s family to be presented before the Supreme Court’s implementation bench, senior legal minds of the country wary on the procedure to be adopted next.

Some are of the view that the implementation bench will examine the JIT’s report, issue **tices to the parties and decide the case, while a few say that the JIT report is for the satisfaction of the judges only and they can decide at their own after the report comes before them.

Some senior lawyers and legal minds were of the view that implementation bench will send the JIT report to the chief justice who will refer it back to the five-member bench of the Panama case to decide the matter. Some also held that the chief justice can constitute a new bench once the JIT report or the matter is referred to him.

Regarding the use of Article 184(3) to disqualify the prime minister, a few lawyers hesitated in replying to the questions, while others said that they were waiting for the court decision, as it would a whole new thing for them.

Some were of the view that the facts against the PM were disputed; therefore, removing him under Article 184(3) would be first of its kind in legal history, while other held that courts can exercise their powers whenever and wherever necessary.

Similarly, legal minds had different opinions over the debate that the petitions against the PM were of quo warranto. Some rejected the assertion, while other spoke in its favour. Many shied away from giving their point of view on the current issue.

Salman Akram Raja, when contacted by The News, said that the three judges of the implementation bench will decide the case once the JIT report comes before them. They can dispose of the case, they can send a reference, they can pass an order or they can refer the case to the chief justice for further action.

He maintained that a Supreme Court bench can pass any order and the implementation bench is a full-fledged bench; therefore, it can pass any order and decide the case in hand. While commenting on the debate that the petition against the PM is whether a quo warranto petition or **t, Raja maintained that in a quo warranto petition, the facts are never disputed. For instance, a person is holding a position at 62 years of age while the maximum age limit for that post is 60 years and he is **t disputing his date of birth; therefore a quo warranto can be filed in that case but **t in the case of Prime Minister Nawaz Sharif where there are allegations (**t proved anywhere) of something done in 1993 but the fact have **t been established yet.

Facts are established in a trial court and neither the Supreme Court **r JIT is a trail court; therefore, there does **t arise any question of quo warranto against the PM. He was of the view that when the JIT report is presented before the Supreme Court, objections would be raised on it if any party is aggrieved, and the parties could be issued **tices on the JIT report.

Akram Sheikh commented said the chief Justice formed an implementation bench based on the April 20 judgement and in all those cases, where commissions are formed, the report of the commission is presented before the court and all the parties are issued **tices, while the report is always subjected to cross examination.

He mentioned that the JIT formed in the case of Panama Papers is actually a commission formed under Order 26, Rule (1) of the Supreme Court Rules and Orders 1980; therefore its recommendations will be cross examined in the court.

He added that the JIT report would be sent to the chief justice who will decide which bench should hear the case and in his opinion the case can**t go to the same five-member bench because two among them have already opined on the case. Therefore either a new bench or a larger bench would be formed as it is entirely up to the chief justice to decide.

He held that the Panama Papers case has **t been decided yet because two judges of the five-member bench have opined that the PM stands disqualified, while the three judges required further investigation which meant that they have ordered an inquiry and have **t yet decided the case.

Akram Sheikh stated that it is the chief justice’s jurisdiction to refer the matter to either the same three judges, or form a new bench to decide the fate of JIT report.

One of the most respected legal minds of the country, Justice (retd) Wajiuddin Ahmad, explained the procedure that the three judges of the five-member bench had requested the chief justice to form an implementation bench for their judgement of further probe into the affairs of the Sharif family. The chief justice formed a three-member bench comprising the same three judges. **w when the JIT’s report comes with whatever remarks and findings, it would be sent to the chief justice.

“**rmally, the chief justice has the powers to form benches but in the cases where a judgement has already been passed, the chief justice has ** powers to change the bench; therefore, the chief justice is bound to send the JIT report before the five judges of Panama Papers case who had earlier given a verdict on April 20,” said the retired judge.

He added: “Those five judges will then decide about the case. Either the two judges who had said that PM stands disqualified might change their judgement as they would have an option or the three judges who order the further investigation would take a decision regarding PM’s disqualification.”

Former Attorney General of Pakistan Irfan Qadir, when contacted for his views, said that the two judges have given their decision in the case while three have **t given any verdict; therefore, when a verdict has **t come forth it can**t be implemented. What is happening is that a bench is facilitating an investigation through JIT, because had there been any decision then there would have been its execution which is **t the case.

He said upon JIT’s report, the bench will have to issue **tices to the parties and make the report public because the Supreme Court is in ** position to deal the JIT report in-camera.

He was of the view that the chief justice must form a larger bench to decide the matter of disqualification through courts under Article 184(3) of the Constitution. “The larger Bench will have to revisit past precedents where people were disqualified from being MPs through courts, while it was **t the duty of the courts to disqualify an MP and by this way court will purify itself,” Qadir held.

He said it started during Justice Iftikhar Chaudhry’s period when fake degree holders were disqualified under Article 184(3) of the Constitution and **w it was high time that the courts come clean on disqualifications under Article 184(3) of the Constitution.

SCBA President Rasheed A Rizvi when contacted said in his opinion, the three judges bench is in fact an implementation bench for order of the court passed on April 20; therefore, when JIT submits its report, all the parties would be issued **tices and the issue will again land before the five-member bench to decide the case.

Rizvi was of the view that the JIT report will be subjected to cross examination by anyone against whom something might be written in the report.

He explained that the JIT might say that the petitioner has **t cooperated or any of the accused has **t cooperated, so that person would be given the right to defend himself before the court decision.

Babar Sattar, talking to this correspondent, held that the three member bench of the SC has to determine the fate of the case before them after considering the JIT report and calling for objections over it, if anyone has. He mentioned that the original five-member bench has given its final verdict of which two judges have has said that PM stands disqualified while three ordered a thorough inquiry into the allegations against the PM’s family.

“It was **t necessary that the three judges of the Panama case bench were to become members of the implementation bench but the chief Justice constituted the bench and included the same three judges,” said Babar Sattar.

He added that this bench has to decide whether it can remove a parliamentarian under Article 184(3) of the Constitution or **t. “In the past, the fake degree holders have been disqualified under Article 184(3) of the Constitution but facts were **t disputed there so they were disqualified”, the lawyer added.

He maintained that in the past, ** parliamentarian has been ******* from his ****** over disputed facts and it is yet to see what the implementation bench orders.

To a question, Sattar replied that the case against the PM is **t of a quo warranto because so far facts have **t been established. Once the JIT report comes and the court gives a declaration under Article 62-63 of the Constitution, then after a whole process, a quo warranto can be filed but the instant case is **t a case of quo warranto against the PM.

Barrister Ali Zafar said it is a settled principle that there would **t be an immediate decision on the JIT report and the report would be dis*****ed to the parties on the principle of fair trial. If it is against someone then reply would be sought from him and a decision would be taken.

He mentioned that it may take a**ther 30 days for the bench to pro**unce a decision on the JIT report. He was of the view that the JIT report would be thoroughly scrutinised by the lawyers of the aggrieved parties (if any) and then a decision would come.

Ikram Chaudhary said one thing must be kept in mind that it is an implementation bench which would be hearing the matter on the day when JIT submits its reply; therefore, it has to take a decision on the JIT report.

“There is ** need for further trial as the JIT is working for the satisfaction of the three judges who had ordered in the April 20 judgement that a further probe is required into the Sharif family’s monetary affairs in order to get a clear picture whether prime minister stands disqualified or **t, And if anyone of these judges says that Nawaz Sharif is disqualified, the April 20 Judgement will become 3-2 majority with three judges saying the PM stands disqualified,” said the senior lawyer

“There is ** precedent available of such an incident where a mi**rity judgement becomes majority after a subsequent probe and satisfaction by the same judges,” he added.

Chaudhary mentioned that the PM will have the right of review in such a case. He said though the contents of the JIT report could be challenged before the NAB, FIA or SECP where the case would further land for necessary action but **t at the Supreme Court level.

Azhar Siddique, when contacted, said the three member implementation bench will examine the JIT report and can summon the prime minister, if necessary, and will order his disqualification in case of any incriminating evidence brought up by the JIT.

He said it has been written in the para four of the April 20 judgement that the bench can disqualify the PM if it is satisfied with the JIT report. If the JIT brings some incriminating evidence against other members of the Sharif family then the issue can be referred to the five-member bench, only to the extent of sending reference against the accused persons.

Siddique was of the view that of the petitions against the PM, one was a quo warranto, seeking his disqualification under Article 62-63 of the Constitution and in the past, the court had taken cognizance of the matters having disputed facts but in the instant case, two out of the five judges have given a verdict on the evidence brought before them while others ordered a further probe.

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