“Panama Papers”

 

P L D 2017 Supreme Court 265

Present: Asif Saeed Khan Khosa,

Ejaz Afzal Khan, Gulzar Ahmad, Sh. Azmat Saeed and Ijaz ul Ahsan, JJ

IMRAN AHMAD KHAN NIAZI---Petitioner

Versus

MIAN MUHAMMAD NAWAZ SHARIF, PRIME MINISTER OF PAKISTAN/MEMBER NATIONAL ASSEMBLY, PRIME MINISTER’S HOUSE, ISLAMABAD and 9 others---Respondents (Panama Papers Scandal)

Constitution Petitions Nos. 29, 30 of 2016 and 03 of 2017, decided on 20th April, 2017.

Per Asif Saeed Khan Khosa, J; Ejaz Afzal Khan, J, dissenting [Minority view]

a) Constitution of Pakistan -

Arts. 62(1)(f), 63(2), 184(3) & 225---National Accountability Ordinance (XVIII of 1999), Ss. 9(a)(v) & 14(c)---Constitutional petition before the Supreme Court seeking disqualification of Prime Minister for acquiring wealth and assets through corrupt and illegal practices and misuse of authority and indulging in money laundering---Maintainability---Properties situated abroad owned by the Prime Minister’s children through offshore companies were revealed in the “Panama Papers” [leaked documents belonging to a foreign law firm that detailed financial and attorney–client information of thousands of offshore entities]---Failure on the part of state institutions to investigate the matter or to refer the matter to the Election Commission against the Prime Minister---Prime Minister was the Chief Executive of the Federation and it was practically he who appointed the heads of all the institutions in the country which could have inquired into or investigated the allegations levelled against him and his family on the basis of the ‘Panama Papers’---Even the Speaker of the National Assembly who could refer the matter to the Election Commission belonged to the Prime Minister’s political party and was his nominee---Present petitions had been entertained by the Supreme Court in the backdrop of refusal/failure on the part of all the relevant institutions in the country like the National Accountability Bureau, the Federal Investigation Agency, the State Bank of Pakistan, the Federal Board of Revenue, the Securities and Exchange Commission of Pakistan and the Speaker of the National Assembly to inquire into or investigate the matter or to refer the matter to the Election Commission against the Prime Minister---Remedy of filing an Election Petition before an Election Tribunal under Art.225 of the Constitution was not available to the petitioners---Speaker of the National Assembly could have referred the matter to the Election Commission of Pakistan under Art.63(2) of the Constitution but he had already dismissed various petitions filed before him in such regard by as many as twenty-two members of the National Assembly---Supreme Court entertained present petitions in view of such background, therefore, it could not turn around and shy away from deciding the matter simply because it purportedly involved some disputed or intricate questions of fact, which it did not---His Lordship observed that if the Supreme Court stopped short of attending to the issue merely because it involved some disputed or intricate questions of fact then the message sent would be that if a powerful and experienced Prime Minister of the country/Chief Executive of the Federation appointed his loyalists as heads of all the relevant institutions in the country which could inquire into or investigate the allegations of corruption, etc. against such Prime Minister then a brazen blocking of such inquiry or investigation by such loyalists would practically render the Prime Minister immune from touchability or accountability.[Minority view].

(b) Constitution of Pakistan-Arts. 62(1)(f) & 184(3)---National Accountability Ordinance (XVIII of 1999), Ss. 9(a)(v) & 14(c)---Constitutional petition before the Supreme Court under Art.184(3) of the Constitution---‘Disputed questions of fact’---Petitioner seeking disqualification of Prime Minister for acquiring wealth and assets through corrupt and illegal practices and misuse of authority and indulging in money laundering---Properties situated abroad owned by the Prime Minister’s children through offshore companies were revealed in the “Panama Papers” [leaked documents belonging to a foreign law firm that detailed financial and attorney–client information of thousands of offshore entities]---Question as to whether disputed questions of fact were involved in the present case which the Supreme Court could not decide in its jurisdiction under Art.184(3) of the Constitution---Present petitions did not involve any disputed and intricate questions of fact which the Supreme Court could not attend to or adjudicate upon in the present proceedings under Art.184(3) of the Constitution---Ownership and possession of the relevant properties situated aboard were not denied by the Prime Minister’s family and the only question relevant to the issue before the Supreme Court was as to whether the Prime Minister’s denial of any connection with acquisition of those properties was honest or not---Properties situated aboard were not in issue before the Supreme Court but what was at issue was Prime Minister’s honesty for the purposes of a disqualification under Art.62(1)(f) of the Constitution, therefore, in order to attend to the said core issue, the material produced by the petitioners regarding the properties was not being taken into account, and the primary considerations were the explanations offered and the material supplied by Prime Minister and his children in order to see whether their explanations vis-à-vis acquisition of the said properties were on the face of it honest or not---Adopting such approach left the court with no disputed or intricate questions of fact on the issue and the court focused solely on the issue of honesty of Prime Minister with reference to the explanations advanced by him and his family---Prime Minister and his family could not claim that their explanations offered on the issue were themselves disputed or intricate questions of fact. [Minority view]