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On the 20th of April this year, the Supreme Court of Pakistan passed the first substantive order in the ‘Panama case’ – a phrase used to refer to the petitions filed by some members of the Opposition seeking disqualification of the then prime minister of Pakistan, Nawaz Sharif, on account of the names of his family members having surfaced in the Panama Papers that were leaked from the databases of Mossack Fonseca, one of the world’s largest offshore law firms. By a 3:2 majority (with the dissenting judges declaring Sharif to be disqualified), the Supreme Court issued directions for the constitution of a Joint Investigation Team (JIT) to probe, inter alia, the sources of income through which Sharif and his family members had come to hold assets in their names. This JIT was directed to submit periodical reports to the Supreme Court on a fortnightly basis, and to complete its investigation within 6o days, with the court having reserved the power to pass further directions upon receipt of the final report. These further directions were eventually issued on the 28th of July when, after the JIT submitted its report, the same 5-Member Bench of the Supreme Court passed the ‘Final Order of the Court’ disqualifying Sharif from being a Member of the National Assembly and directing the National Accountability Bureau to file references before an Accountability Court against Sharif and his family members. Over and above these directions, the court also requested the Chief Justice to nominate a judge of the Supreme Court to “supervise and monitor” the implementation of the judgment as well as the proceedings conducted by the National Accountability Bureau and the Accountability Court.
The orders passed by the Supreme Court of Pakistan are best described as being in the nature of a ‘continuing mandamus’, i.e. a writ directing government agencies to fulfil their duties in order to satisfy a judgment or decree, till which time the court continues to retain supervisory jurisdiction so as to ensure compliance of its directions. The main purpose served by the issuance of such a writ is to redress the surrender or failure of an institution. Although such writs are usually resorted to in cases involving environmental issues and socio-economic rights adjudication (see e.g. the Manila Bay case from the Philippines), its extension to investigative agencies is not novel: the apex courts of both Pakistan and India have in the past resorted to issuing writs of continuing mandamus to ensure that investigative agencies fulfil their duties without any bias or influence, usually in cases implicating government officials or public office holders.
Although the orders passed by the Supreme Court of Pakistan in the Panama case have stirred considerable debate involving a wide array of legal issues, I intend to devote this comment to one specific aspect of the final judgment of the 28th of July. I will argue that while there may have been some legal foundations on which the court retained jurisdiction and kept the lis pending in its first order of 20th April, some of the directions issued in the final judgment of 28th July travel far beyond the scope of a continuing mandamus and tend to considerably undermine judicial independence. My main concern here is with the Supreme Court’s retention of a monitoring role over the Accountability Court which, in many ways, is tantamount to a superior court’s vote of no confidence in the ability of lower courts to administer justice. I will argue that the position favoured in similar cases by the Supreme Court of India is more balanced and desirable insofar as they have used the writ in such circumstances only to the extent of bringing the matter before a judicial forum for trial, after which the Supreme Court takes a hands-off approach, leaving it to the trial court to adjudicate freely and independently.
Using ‘continuing mandamus’ to monitor investigations in India
The first instance of the continuing mandamus being consciously used by a court to monitor investigations is found in the famous case of Vineet Narain v Union of India (AIR 1998 SC 889) when the Supreme Court of India was petitioned as a result of the failure of the Central Board of Investigation (CBI) to probe into a matter which, prima facie, implicated influential politicians and high-ranking bureaucrats. The procedure adopted by the court, as reflected in the judgment, details precisely how the continuing mandamus is expected to function cases involving inertia of investigative agencies:
“We have taken the view that given the political personalities of the people to be investigated in the “Jain Diaries” case and the time already lost in commencing the investigations, it was advantageous not to hear the matter through and issue a writ of mandamus, leaving it to the authorities to comply with it, but to keep the matter pending while the investigations were being carried on, ensuring that this was done by monitoring them from time to time and issuing orders in this behalf…
…The sum and substance of these orders is that the CBI and other governmental agencies had not carried out their public duty to investigate the offences disclosed; that none stands above the law so that an alleged offence by him is not required to be investigated; that we would monitor the investigations, in the sense that we would do what we permissibly could to see that the investigations progressed while yet ensuring that we did not direct or channel those investigations or in any other manner prejudice the right of those who might be accused to a full and fair trial. We made it clear that the task of the monitoring court would end the moment a charge-sheet was filed in respect of a particular investigation and that the ordinary processes of the law would then take over. Having regard to the direction in which the investigations were leading, we found it necessary to direct the CBI not to report the progress of the investigations to the person occupying the highest office in the political executive; this was done to eliminate any impression of bias or lack of fairness or objectivity and to maintain the credibility of the investigations. In short, the procedure adopted was of ‘continuing mandamus’.” (Re: paras 7 & 8) (emphasis supplied)
There is, in my view, great wisdom in the clarification offered by the Supreme Court, highlighted in the passage quoted ibid. Although not stated explicitly, the reason why the court clarified that the monitoring process would end the moment a charge-sheet was filed was to ensure that the judge trying the accused could perform his judicial functions independently. To the extent that the right to fair trial envisages the right to be tried by an independent judge, this is in consonance with the ethos of rights-adjudication under the constitutional framework of India. There is, perhaps, a more diplomatic reason behind this clarification as well: given that the writ of continuing mandamus was issued in Vineet Narain’s case because of the inertia of investigative agencies and their reluctance to probe into the affairs of high-profile individuals, any monitoring of the trial would be based on the premature assumption that courts, too, would be reluctant to try high-profile individuals. The apex court of India chose not to condemn lower courts in this fashion.
Nevertheless, since the ruling in Vineet Narain, the Supreme Court of India has on numerous occasions issued writs of continuing mandamus to initiate what are now called “court-monitored investigations”. Notwithstanding the thorny question of whether the judicial exercise of such functions is compatible with the doctrine of separation of powers, what is noteworthy for present purposes is that in almost every such case, the Supreme Court of India has unequivocally reiterated the principle that its monitoring jurisdiction would cease the moment a charge-sheet was filed in a trial court. This position was thus reaffirmed in Union of India v Sushil Kumar Modi (the Bihar fodder scam case:  8 SCC 661), M.C. Mehta v Union of India (the Taj Corridor scam case:  1 SCC Cri 264), Narmada Bai v State of Gujarat (the ‘fake police encounter’ case  5 SCC 79), and Jakia Nasim Ahesan v State of Gujarat ( 12 SCC 302), to name a few.
The Supreme Court of Pakistan’s use of continuing mandamus
The Panama case was neither the first instance when the Supreme Court of Pakistan monitored an investigation, nor the first occasion when the National Accountability Bureau (NAB) was found to have been aberrant in performing its functions. In 2011, the court rejected the contention that it lacked jurisdiction to supervise an investigation in quite strong terms:
“…it would have been felonious and unconscionable on the part of Supreme Court if it had refused to intervene to defend the fundamental rights of such a large section of the public and leaving it only to the concerned officials of the NAB who had done nothing at all in the matter for almost two years and who had remained only silent spectators of entire drama and had only witnessed the escape of the accused persons to foreign lands.” (Re: National Insurance Company Limited Scam Case – PLD 2011 SC 927, explaining the decision in Bank of Punjab v Haris Steel Mills – PLD 2010 SC 1109)
In the National Insurance Company Limited Scam case, the court placed reliance on the Indian Supreme Court’s judgment in Vineet Narain to hold that in cases involving the “continued inertia” of investigative agencies, the court was under a duty to ensure commencement of investigation along with its supervision. In fact, the passage from Vineet Narain relied upon by the Supreme Court of Pakistan clearly states the position that once investigation is complete and charge-sheets are filed, it is only the trial court that is competent to adjudicate upon the case, without any monitoring by the Supreme Court.
The need for monitoring investigation in the Panama case, too, arose out of NAB’s hesitance in carrying out investigation into the assets of Sharif and his family on the weak pretext that it lacked jurisdiction to do so. It was for this reason that the court was compelled to constitute a ‘Joint Investigation Team’ which comprised of members from different investigative and intelligence agencies, including the controversial Inter-Services Intelligence (ISI). Although there is a lot to be said about the desirability of an investigation team constituted under the directions of the apex court, as indicated earlier, my comment is devoted exclusively to the implications of having a monitoring judge from the Supreme Court to supervise the trial before an Accountability Court. The precise scope of this monitoring is phrased in the following manner:
“The Hon’ble Chief Justice of Pakistan is requested to nominate an Hon’ble Judge of this Court to supervise and monitor implementation of this judgment in letter and spirit and oversee the proceedings conducted by the NAB and the Accountability Court in the above matters.” (Re: para 5 of the Final Order of the Court)
In retaining jurisdiction to supervise and monitor the proceedings conducted by the Accountability Court, the Supreme Court of Pakistan seems to have fallen into the very same error that the Indian Supreme Court consciously tried to avoid, i.e. tacitly saying that trial courts are incapable of doing justice in high-profile cases without an apex court judge monitoring their progress. The repercussions of this error are far-reaching given that, eventually, the entire case against the Sharifs is likely to come back to the Supreme Court in its appellate jurisdiction. In fact, already, the monitoring Supreme Court judge is being called upon to intervene in areas that fall squarely within the domain of the Accountability Court. In my view, unless the scope of monitoring and supervision of the Accountability Court in this case is significantly narrowed down and/or clarified, the directions contained in the judgment of 28th July, 2017 amount to an indictment of judges performing their functions in the lower / trial courts of Pakistan, while the judgment itself may come to be viewed as, amongst other things, a writ of continuing mandamus arising out of the (presumed) institutional failure of the judiciary.
Isaam Bin Haris is an advocate of the High Courts, based in Lahore, Pakistan, and a Lecturer in Equity and Trusts at University College Lahore, an Affiliate Centre of the University of London International Programmes.
(Suggested citation: I. Bin Haris, ‘The “Continuing Mandamus”, Institutional Failure and Judicial Independence – Pakistan’s Three-Pronged Conundrum’, U.K. Const. L. Blog (20th Sept. 2017) (available at https://ukconstitutionallaw.org/))