Malik Muhammad Ashraf
There is a legal aphorism, “Justice should not only be done; it must also be seen to be done.†This is a universally accepted principle of jurisprudence. The historic perspective about this principle is the landmark decision given by Lord Chief Justice Hewart at the King’s Bench Division (UK) in 1923 in a judicial review in which a motorcyclist who was convicted by a court for negligent driving contended that the clerk of the judge was a member of the firm of solicitors acting in a civil claim against the defendant arising out of the accident that had given rise to the prosecution. The convict and his solicitor filed the review on learning the provenance of the clerk. The judge acquitting the convict held “It is of fundamental importance that justice should not only be done but should manifestly and undoubtedly be seen to be done. Nothing is to be done which creates even a suspicion that there has been an improper interference with the course of justice. The two-fold position of the clerk was a manifest contradiction. In those circumstance I am satisfied that this conviction must be quashed.†This ruling is derived from the principle of natural justice and has been followed through the world in countries that use the English legal system. It has been applied in many diverse situations. The most famous example is of the Augusto Pinochet (former Chilean military dictator) case, where the House of Lords overturned its own decision on the ground of Lord Hoffman’s conflict of interest. Pinochet was arrested under an international arrest warrant during a visit to London on 10 October 1998 in connection with numerous human rights violations. However he was later released and returned to Chile in March 2000.Judging on the touchstone of the foregoing facts, the JIT formed by the Supreme Court to probe into the Panama case does not meet the legal requirements due to the fact that two of the members have political affiliations and conflict of interest, which they concealed from the Supreme Court. The reservations expressed by Hussain Nawaz in regards to their affiliations and lack of trust in them should have been a sufficient ground for the Supreme Court to have reconstituted the JIT as it had created enough doubt about their credentials as impartial investigators. The defendants also claimed to possess a video of the proceedings of JIT to support their allegations of mistreatment of the defendants by the JIT members to the extent of intimidating them. The SC however dismissed the reservations of the defendants and asked the JIT to continue its work. Whatever the decision of the apex court there is simply no option other than to accept it and accordingly the defendants are appearing before the JIT and answering the questions being asked with the available documentary evidence. However the issue has taken a very serious turn with the revelations made in a news report by an eminent investigative journalist that the concerned departments were pressurised to include certain names in the list of officers to be recommended by them for the JIT. In a following up story he has also published the contents of a letter that the SECP chief wrote to the registrar of the SC mentioning those names that corroborates the version of the journalist in this regard. It is a very serious issue as the credibility of the whole exercise seems to have been undermined and in addition to legal repercussions it might also have damaging political fallout. These developments have surely dented the impartiality and credibility of the JIT. Under the circumstances the SC must first of all order a probe into the revelations made in the news report and the corroborative content of the letter written to the registrar of the SC by SECP Chief. To meet the demands of justice and to make sure that justice is not only done but is also seen to be done, it has become absolutely imperative. Since the name of the SC registrar is being associated with the emerging scandal, it is in the interest of the prestige and credibility of the apex court that all doubts in this regard are set at rest through a transparent investigations and a new JIT formed to deal with the Panama case. Panama Leaks is a highly politicised case and the court actually should not have accepted the petition of PTI after having refused to form a Judicial Commission at the request of the Prime Minister contending that the existing law regarding formation of Commission was not sufficient to deal with the issue. What is done cannot be undone. Now that the court has accepted the responsibility, it needs to make sure that the whole affair is conducted strictly according to the law and the internationally recognised principles of jurisprudence. The SC being the highest court of law in the country is supposed to uphold the sanctity of law by making sure that no deviation or detour from the legal norms and principles of jurisprudence is permitted to occur. The decision of the SC and the reasoning given for the formation of JIT did emphasise strict adherence to the existing laws, very rightly so.However with due veneration to the apex court and the integrity of the SC judges, I cannot resist my inner voice that by including the representatives of MI and ISI in the JIT they have not only undermined the position of the state institutions which are supposed to hold investigations in such matters but have also set a very wrong precedent of interference of those institutions in the issues which they are not supposed to delve into. No matter how high the stakes, and how noble the cause there is a need to follow the prevalent rules and practices integral to the system. It is not the ends that justify the means but the means that actually justify the ends. If you want to build a mosque you need to spend honestly earned money on its construction. By the same token if you want to dispense justice you have to proceed according to the law of the land and the constitution. At the same time the judges also have to make sure that they speak through their decisions as required under the code of conduct devised by the Supreme Judicial Council and avoid making remarks which any of the litigants can exploit to its advantage. Unfortunately that has been going on without restraint and the judges seemed to be relishing the prospect of hitting the headlines through their statements having political connotations.
