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04-24-2017, 10:51 AM
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SC implementation bench is more powerful
 Two viewsIt is empowered to send PM home before conclusion of JIT report; it will minutely monitor JIT members’ performance and foil any attempt to influence them ISLAMABAD: The implementation bench of the Supreme Court to be constituted by the Chief Justice of Pakistan this week will be much more powerful than an ordinary judicial commission and will have definite and absolute power to send the prime minister home even before the conclusion of the JIT report. It is generally believed and rightly so that as most of the JIT members will be ordinary government employees and will **t dare ask tough questions from the prime minister and his family members. However, a judicial commission, if it would have been constituted, would also have to mostly rely/work with government employees who would **t have been **minated by the Supreme Court and thus could be more easily manageable. It is important to mention that a judicial commission never has ultimate and conclusive power to have anything done or to pass a final order. If a judicial commission reaches a conclusion that the prime minister is dishonest, it can**t disqualify him and can only give such a recommendation. On the other hand, the implementation bench to be constituted as a consequence of Panama case verdict will have ultimate powers to disqualify the prime minister at any moment before or after any JIT report. The JIT members will **t only be appointed by the five-member bench which heard Panama Case but will also be appearing before the implementation bench of the apex court. First of all, it will **t be easy to influence these officials. Secondly, even if some member will try to extend any favour to the ruling family, the implementation bench will be monitoring everything minutely. Media will also be observing all developments. **w if the same JIT members (read experts etc) are working with an ordinary judicial commission, even if comprising sitting Supreme Court judge(s), they couldn’t be as efficient and answerable as they will be to a regular bench of the apex court. Most importantly, if during any hearing, any member of JIT complained that he is contacted by a government minister or any other high-up or is pressured, this will be huge blow to the whole government. Again if such a revelation is made before an ordinary judicial commission, it will have little impact as judicial commission would **t be in a position to pass any strict orders punishing any high-up. Also contrary to the general perception, the implementation bench which is expected to take birth this week will be very much powerful and in a position to order taking help from any experts, forensic experts from home or from abroad. The judges in implementation bench will be regular Supreme Court judges and will have all the powers that an apex court judge enjoy while hearing the case under articles 184(3), 187(2) and 190 of the constitution. The most important thing to observe will be the constitution of the new implementation bench. It will be up to the judges sitting in the implementation bench to give any direction to the historic Panama Case. If JIT members are being influenced or managed, the implementation bench judges can foil any such move. On other hand, if the members of the JIT are competent, honest and highly professional but the judges sitting in the implementation bench don’t want to take the case forward towards a logical conclusion, whole efforts and investigation done by JIT will be spoiled. The implementation bench of the Supreme Court can consider the disqualification of the prime minister even after initial JIT reports without waiting for the final report, all the five members of the apex court bench which heard the Panama Papers case held unanimously. Para-4 of the ‘Order of the Court’ which was signed by all the five judges, reads; “It is further held that upon receipt of the reports, periodic or final of the JIT, as the case may be, the matter of disqualification of respondent **. 1 shall be considered. If found necessary for passing an appropriate order in this behalf, respondent **. 1 or any other person may be summoned and examined.” In a**ther important step, the five members of the bench unanimously allowed the re-investigation of **torious Hudabiya Paper Mills case which will also include complete re-examination of historic “Rehman Malik Report”. In Para-3 of the ‘Order of the Court’, which was signed by all the five judges, it is held, “The JIT may also examine the evidence and material, if any, already available with the FIA and NAB relating to or having any nexus with the possession or acquisition of the aforesaid flats or any other assets or pecuniary resources and their origin.” NAB has complete record of Hudabiya Paper Mills case whereas FIA has “Rehman Malik Report” and many original documents in its custody and all of which are linked finances, properties and London flats of Sharifs. Para-3 also held in categorical terms that the implementation bench may pass any orders by using powers and jurisdictions available in articles 184(3), 187(2) and 190 of the constitution and finally can also order NAB filing a corruption reference against the Prime Minister or his affiliates. It reads, “The bench thereupon may pass appropriate orders in exercise of its powers under Articles 184(3), 187(2) and 190 of the Constitution including an order for filing a reference against respondent **. 1 and any other person having nexus with the crime if justified on the basis of the material thus brought on the record before it.” It is obvious that JIT would never be able to complete its report within two months and the task to find out answers to 13 questions and some other confusions mentioned in ‘Order of the Court’ will take many years. The JIT (yet to be constituted) is also ordered to submit its report after every fourteen days. That’s why any concrete evidence against the Prime Minister given in any periodical report can become basis of consideration of his disqualification by the implementation bench even in next month of May. If JIT will succeed in finding out some concrete evidences in light of credible documents and facts present in the files of Hudabiya Papers Mills case or from the Rehman Malik Report, the implementation bench can order filing of a corruption reference against the Prime Minister. **t only this, as per Para-3 of the “Order of the Court”, the JIT will have to investigate if Prime Minister, any of his affiliates or those around him have made any assets, fortunes, money or any interest therein disproportionate to their k**wn means of income. All these orders are unanimous and all the five judges of the bench which heard Panama Papers Case agreed on these points. Judicial commission is the way out SC judges unanimous in disappointment over anti-corruption watchdogs; IB should have been part of the JIT By Umar Cheema ISLAMABAD: The Supreme Court of Pakistan’s judgment on the Panama Papers petitions has resumed the debate about the chronic issues -- **n-accountability of the ruling elite at the hands of anti-corruption watchdogs working at the wish and whims of the government. That the verdict was split is a fact. What the mi**rity judges viewed has many takers in the opposition parties whereas the decision handed by the majority judges was music to the ears of the government. That the Sharif family has **t been given a clean chit by either side of the judges is what has been deliberately downplayed by the official spin masters. The questions worth probing about the unexplained sources of wealth of the ruling family have been referred to the Joint Investigation Team. It will draw representation from the State Bank of Pakistan, Securities Exchange Commission of Pakistan, National Accountability Bureau, Federal Investigation Agency, ISI and MI. Incidentally, the government had ordered in September 2016 to SBP, SECP and FBR for assisting the judicial commission it had asked the Supreme Court to constitute. The SECP later told the Public Accounts Committee that it couldn’t find a smoking gun while remaining within its purview; SBP said most of the money in such cases is generally transferred abroad through hundi/havala, hence The NAB had also declared that charges against the Sharif family were beyond its jurisdiction and FIA did **thing either. Inclusion of military-led agencies in the SC-formed JIT has left many wondering that how come intelligence operatives mandated with the national security will be helpful in the probe under question. If that was inevitable, IB should also have been included. This is probably the first JIT in recent years constituted where ISI and MI are present and IB absent which is credited for big operations in Karachi, Quetta and Khyber-Pakhtoonkhwa. How will JIT devise a mechanism to get answers from the Sharif family remains a question especially they have already failed to satisfy SC, something the judges **ted in the verdict. And rather a bigger question is that if JIT will be able to conduct probe of the incumbent Prime Minister? Answer is in the negative. There is ** prize in guessing that even judges are **t optimist about the performance of the departments assigned investigation through JIT. Although the five-member bench didn’t have a consensus decision, all the judges were unanimous in voicing disappointment over the performance of the accountability watchdogs. A line of Justice Ejaz Afzal Khan, author of the majority judgment, is e**ugh to pro**unce this **-confidence: “Yes, the ******rs at the peak of NAB and FIA may **t cast their prying eyes on the misdeeds and lay their arresting hands on the shoulders of the elites on account of their being amenable to the influence of the latter or because of their being beholden to the persons calling the shots in the matters of their appointment posting and transfer.” This discontent is a source of contentment for the government. If history is any guide, all the institutions in general and anti-corruption bodies in particular have been used as a tool by the government of the day. Instead of carrying out their job, FIA, NAB and FBR etc either act as hit-men of the top boss for punishing his opponents or whitewashed the crimes of the government functionaries. These institutions have such a **torious reputation that **body would believe they would perform any job honestly and with a sense of duty. Their response was **t different after Panama Papers story broke out. more than 400 Pakistanis were identified in connection with the offshore companies but they could **t dare going after them because Prime Minister’s family was also named. This sorry state of affairs was also bothersome for the judges who directed the formation of JIT headed by an additional DG of FIA, they however **ted with regret that there was ** other option left. “But it does **t mean that this Court should exercise a jurisdiction **t conferred on it and act in derogation of the provisions of the Constitution and the law regulating trichotomy of power and conferment of jurisdiction on the courts of law,” said Justice Ejaz Afzal Khan. I would respectfully disagree with the ho**rable judge. The Supreme Court of Pakistan set example when the son of a former judge came under question after the allegations leveled by a businessman. One-man commission was formed under the leadership of Dr Shoaib Suddle, the then-Federal Tax Ombudsman. He was granted judicial powers to direct any government authority for cooperation in the investigation. Failing in that was tantamount to the contempt of the court. It was during that time that secretary interior was put on contempt **tice for **t relieving an FIA ******r needed for this investigation. Finally, the ******r demanded had to be put at the disposal of the commission. Same was the case with the other departments. The commission had also hired private forensic and audit experts for getting to the truth. This is a**ther story that Supreme Court dissolved the commission after the submission of the preliminary report that was damning against the former judge's son in addition to the businessman. This time, the first family of Pakistan is under investigation. Anything short of a powerful commission of inquiry wouldn’t inspire the confidence of the public at large. It must be headed by a sitting judge or a person of integrity and courage like Dr. Shoaib Suddle who did PhD in white collar crimes. Other than the setting up of a commission, the court must intervene for carrying out structural reforms in anti-corruption watchdogs. The Supreme Court of India has set many precedents in this regard. The Central Bureau of Investigation (CBI) was reformed under direction of the court which ordered the formation of the Central Vigilance Commission (CVC), outside of government influence, to oversee reforms. The CVC became a statutory body with a bipartisan process of appointment of commissioners who would in turn constitute the majority of the committee that would select the director of the CBI. These were the key first steps in the court’s overall design of de-politicizing anti-corruption investigation in India. Recognizing the threat of interference in anticorruption investigations, the court adapted its procedures to allow for constant monitoring of such investigations as a means to fundamentally transform the nature of the investigative machinery. This marked a radical departure from traditional, one-time remedies in public law. An unstated premise of this in**vation was the belief that judicial supervision could substantially remedy any irregularities in corruption-related investigation, hardly a foregone conclusion. Such steps increased the confidence of civil society and anti-corruption activists who tend to approach in cases of major scandals towards the highest court of India. أكثر... 
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