Panama Papers: Supreme Court may name sitting judge to head commission

Supreme Court is expected to name today a sitting judge to head a single-member Commission with the same authority as the Supreme Court to investigate the Panama papers, legal experts told Business Recorder.
There is intense speculation in the capital as to what would be the time line given to the Commission for completion of the task, whose services would the Commission be empowered to draw from i.e. only state institutions which have so far dragged their feet in terms of investigating the Panama papers or those engaged in the private sector here and abroad, and the thorny issue of the terms of reference of the commission that are approved by the court.
While talking about the time frame and scope of the TORs of the commission, legal experts refrained from giving any definite response saying the matter is sub judice in the apex court. Chief Justice categorically stated that it was the court, not the parties in the matter, that would decide the TORs.
The formation of the Commission was delayed at the last hearing held on 3 November due to the failure of the Premier's children Maryam, Hussain and Hassan Nawaz to submit their response hearing with the court giving them a deadline till 7 November.
A five-member larger bench led by the Chief Justice Anwar Zaheer Jamali has taken up pleas of Pakistan Tehrik-e-Insaf (PTI) and three others seeking disqualification of Prime Minister Mian Nawaz Sharif and his family members from parliament after their names appeared in the Panama papers.
Talking to Business Recorder, former president of the Supreme Court Bar Association Barrister Ali Zafar said: "the law is that if someone gives false evidence in a court of law then he is liable for the offence of perjury...Nawaz Sharif's statement in the Supreme Court if proved to be untrue, would be tantamount to perjury".
Another legal expert, Sharaft Chaudhry, told the Business Recorder, "the offence related to perjury is a serious offence as it detracts from the administration of justice. Giving or fabricating false evidence before the court is one of the serious offences under the Pakistan Penal Code (PPC), Section 191,192 and 193".
Sharafat Chaudhry further stated under Section 193 of the PPC whoever intentionally produces false evidence at any stage of the proceedings before the Commission or fabricates false evidence to achieve their objective(s), may attract penal provision; and punishment for such offence prescribed in the section is a fine and imprisonment which may extend to seven years.
International Consortium of Investigative Journalists (ICIJ) based on leaks by a whistle blower engaged by Mossack Fonseca, a Panamian company, gave the names of hundreds of Pakistanis including Prime Minister Nawaz Sharif's three children.
The Commission would submit its report in the matter to the larger bench once its task is completed.
In Pakistan evidence law places the burden of proof on the party making the accusation. While this would imply that the onus of proof rests with the PTI and the other three petitioners yet legal experts argue that the Panama papers are by themselves proof of ownership in offshore accounts and so it is unclear what approach the court will take.
Responding to Business Recorder, an official of the Election Commission of Pakistan (ECP) said that during the last 12 years no citizen has moved the court against any legislator. He added that Political Parties Order of 2002 requires the ECP to act against a political party if it submits a false statement of its accounts or if they are not duly audited by a chartered accountant and certified. He further said, "But no power to act against the member has been delegated to it". The penalty for corrupt practice under the existing law is a maximum three-year jail term with fine up to Rs 5,000 or both.
However, former Secretary of the ECP Kanwar Dilshad said under the Representation of People Act 1976 Section 42(A) it is mandatory for members of parliament to declare assets held by them, their spouses and their dependents. He added that if a parliamentarian falsely or wrongly declares the assets then the ECP may file a complaint in the matter before a Sessions Judge for criminal proceedings.
In this connection, Dilshad cited Article 221 of the Constitution, according to which, all state institutions are bound to cooperate with the ECP in discharge of its duties.
He further noted that Supreme Court of Pakistan has already disqualified nine parliamentarians for submitting forged statements of return to the ECP.
Submission of assets and liabilities' details is a mandatory requirement under Section 42A of the Representation of the People Act 1976 which states: "Where a member submits the statements of assets and liabilities under sub-section (1) which is found to be false in material particulars, he may be proceeded against under Section 82 for committing the offence of corrupts practice".
Interpreting this Dilshad said, "A false statement of the assets in terms of Section 82 of the act is tantamount to corruption, but no clear-cut authority has been delegated to the commission to act upon it".