Huzaima Bukhari & Dr. Ikramul Haq
The story behind ‘sword of Damocles’ has become relevant for Prime Minister Nawaz Sharif in the wake of Supreme Court’s judgement in Imran Ahmad Khan Niazi v Mian Nawaz Sharif & 9 Others [CP No. 29 of 2016—Panama Papers Scandal], announced on April 20, 2017. Dionysius, the tyrant of Syracuse had a courtier named Damocles who was more or less a professional flatterer who lay around opulent feasts saying nice things to Dionysius. And once, he made a comment to the effect of, oh, how great it would be to be the king. And Dionysius said, “Oh, really? Well, if you want to know what that’s like, you can come and sit on my throne,” which Damocles did and Dionysius made sure that he was well supplied with sumptuous food, great service by cute waiters, beautiful perfumes and scented candles going. And Damocles was thinking to himself, how very wonderful then it must be and then noticed that Dionysius had also hung above the throne a gleaming sword, which was suspended by a single horsehair. And he then begged Dionysius to be allowed to leave the throne and to go back to his subservient position as a courtier and obviously got the point: anybody who gets to enjoy immense wealth, luxury and power also is living under a perpetual threat.
The brief summary of the judgement is:
Two honorable senior judges have declared that the Prime Minister should be disqualified in terms of Article 62(1)(f) of the Constitution.
The remaining three judges, after rejecting the defence of Prime Minister and others ordered further probe through a joint investigation team (JIT), under the supervision of the apex court.
Even in majority view (order of the court), not a single judge has acquitted Nawaz Sharif.
No judge has dismissed the petitions being without merit.
Mr. Saad Rasool, a young lawyer having done his Masters in Constitutional Law from Harvard Law School, in his op-ed [A judgement to remember? The Nation, April 23, 2017] has raised the following pertinent questions and made some interesting observations:
“In any case, one has to wonder, would the majority have ruled as it did, if the person in question was not Nawaz Sharif?
Regardless, now that the JIT has been formed, with specific TORs, a number of questions arise. Can the JIT be expected to work independently, while investigating the sitting PM? If NAB, FIA and other regulators are not performing their job (as observed in the judgment itself) why have they been included in the JIT? Also, why have intelligence agencies been entrusted with an ‘investigation’? Even so, why has the civilian intelligence agency (IB) not been included in the JIT?
Also, can the PM and his family be allowed to further improve upon their “not believable” story? If so, how will this ‘improvement’ be seen through the lens of law? Do the courts not convict people, every day, when they improve their defence in criminal cases?
Can additional documents or foreign letter be submitted before the JIT, when the same were not given to the court? Did the PM, and his family, not assure the court that “every” documentary evidence, in their possession, has already been placed on the record?
Importantly, per the TOR, the JIT is supposed to investigate issues such as whether the Qatari letters are “a myth or reality”. Can the JIT declare these letters, and their content, to be the truth, even after judges of the Supreme Court have already rejected their veracity? Can the JIT sit in appeal over issues that have already been decided by Justice Asif Khosa and Justice Gulzar Ahmed?
And what will happen in 60 days? Will this probe be concluded, or is this going to become a repeat of the Arsalan Iftikhar or Saleem Shehzad investigations?”
It is worthwhile to remember that on December 9, 2016, a five-member bench of Supreme Court ordered fresh proceedings