May issue 2017
Cover Story: Justice Delayed?
The Panama Leaks case is back at square one. When the money-laundering charges against Prime Minister (PM) Nawaz Sharif surfaced for the first time a year ago in April 2016, opposition leader Imran Khan took to the streets for pressuring him to resign from his seat and face a fair and impartial investigation. After a quasi-verdict by the Supreme Court on April 20, Khan is up in arms again, albeit this time other opposition parties, such as the JI and the PPP, have also joined the fray.
There was no reprieve for PM Nawaz Sharif in the split, semi-final verdict of the Supreme Court announced on April 20 in the Panama Leaks case, but a delay in the Supreme Court’s final judgement serves Sharif well by default. It has given him time to tie up loose ends in case he is made to bow out or to hold general elections. Meanwhile, Sharif’s legal team is using technical ploys to help the PM retain his seat.
The Supreme Court judgement did not give PM Nawaz Sharif a clean chit, but he has benefited first from the prolonging of the proceedings of the case, ostensibly on account of the ailment of one of the judges hearing the case, later from the reservation of the judgement for two long months, and now from the institution of a Joint Investigation Team (JIT) to conduct further enquiries into the case within a stipulated two-month period. Sharif now has time to inaugurate development projects, work on sorting out the power crisis, and reiterate to the public, all the PML-N’s ‘achievements’ — in the process, scoring political mileage in the run-up to the next general elections.
The Panama Leaks case consisted of two parts. One pertained to the application of Articles 62 and 63 (the stipulation that all those seeking seats in parliament must ensure they have good moral fibre) in respect of the questionable acquisition of foreign assets by the Sharif family, and the other to the charges of money-laundering against Nawaz Sharif, specifically relating to the money which, it was charged, went into the purchase of the properties in London.
Three out of the five judges of the Supreme Court deciding the case, opted not to judge Sharif on the basis of Articles 62 and 63, even though the material provided by the prosecution team made their case on these counts strong. They remained silent on this score, thereby letting Sharif off the hook, at least for the time being. The two senior-most judges on the bench — Justice Asif Khosa and Justice Gulzar Ahmed — however, took notice of the murky financial dealings of the Sharif family and disqualified the PM for not being either sadiq (truthful) or ameen (honest) — in essence saying he is a liar and dishonest. But it was the numbers that won the day. The ruling PML-N is celebrating that only two out of the five judges on the bench gave a damning verdict.
All five judges ordered the institution of a so-called JIT for a further probe into the allegations of money-laundering against Sharif. The judges could have directed the prime minister to stand down while the investigation against him was underway, but they did not. And, it is being argued, the constitution of an investigative body manned by the people who are administratively subservient to the accused, implies the outcome of the probe will go in Sharif’s favour.
Immediately after the announcement of the judgement, PML-N media managers started proclaiming the court’s judgement as a ‘victory’ for the PM. Lending their own spin to the Supreme Court’s verdict, PML-N federal ministers announced that the court had “rejected” the petitioners’ claims, and they were heard gloating about this ‘victory’ on assorted television channels and seen distributing sweets to celebrate the judgement which they maintained vindicated the PM’s position.
The facts, according to lawyer, Saad Rasool, are these: “those judges who did not disqualify the prime minister also rejected the PM’s defence and sought further investigation, under the strict supervision of the court itself. Not a single judge accepted the defence’s stance. No judge declared that the petitions against Sharif were without merit, not one dismissed the petitions, and no judge acquitted him of all charges.”
In his dissenting note, Justice Asif Khosa declared that “it is not the properties in London which is at issue before this Court… what is at issue is [the PM’s] honesty for the purposes of disqualification under Article 62(1)(f) of the Constitution.” In his note, Justice Khosa stated that he decided to keep the material produced by the petitioners aside, and to take into consideration primarily the explanations offered and material supplied by the PM and his family, in their own defence.
Justice Khosa found a surfeit of contradictions and “broken” links in the material produced by the PM and his family, concluding that the PM “economised with the truth.” He also maintained that “no details of any bank account, any banking transaction or any money trail has been brought on the record” by the PM or his family. Justice Khosa further stated that the entire “story” about the Qatari investments was “nothing but an afterthought” with “absolutely nothing” on the record to substantiate this tale. Justice Khosa concluded that “what has been told to the nation, the National Assembly or even this Court about how the relevant properties in London had been acquired, is not the truth.” According to him, the PM’s story was “unbelievable,” replete with “oscillating and vacillating explanations.” Hence, he contended it had no “credibility,” and made one “wonder where truth and honesty stand in the list of priorities” of the PM. And because of such considerations, Justice Khosa, along with Justice Gulzar, disqualified Nawaz Sharif from premiership under Article 62 and 63 of the Constitution.
Interestingly, Justice Ijaz-ul-Ahsan, Justice Azmat Saeed and Justice Ejaz Afzal Khan — the three judges who ruled in favour of continuing the investigation against Sharif, but not immediately prosecuting or disqualifying him — agreed with most of the conclusions drawn by Justice Khosa and did not accept Nawaz Sharif’s explanation with regard to the purchase of the London properties. They also raised questions about other details provided by the defence. In fact, in the majority judgement, Justice Ahsan stated that there were “patently contradictory statements” by the PM and his family members, and observed that the Qatari letters “have not been proved in accordance with law, are ex facie based upon hearsay and not substantiated by any credible material, let alone document(s)/evidence.” He also observed that “it is hard to believe” that 12 million dirhams exchanged hands “in cash,” and that “no effort has been made to provide even the basic answers” to questions raised against the PM, and “no effort was made, despite questions asked, to explain why two young men, who were studying in London, needed four large independent flats to live in.” Justice Ahsan stated that the payment spreadsheet, presented by the defence was an “amateurish exercise in reverse accounting,” thus “bogus,” and having “no legal or evidentiary value and we have no hesitation in outrightly rejecting it.”
And yet, the three judges of the bench opted for deferring the final judgement about the honesty and truthfulness of Nawaz Sharif. They ordered the formation of the JIT with specific Terms of Reference (TORs) while allowing Nawaz Sharif to remain the chief executive of the country.
The Supreme Court has sent letters to the Federal Investigation Agency (FIA), the National Accountability Bureau (NAB), the Securities and Exchange Commission of Pakistan, the State Bank of Pakistan, the Inter-Services Intelligence (ISI) and the Military Intelligence, directing them to propose names of possible candidates for the JIT. This investigative team, once operative, will be reporting to the Supreme Court, not the government.
That notwithstanding, the question arises, can the JIT be expected to work independently, while investigating the sitting chief executive? The majority judges did not consider this obvious conflict of interest. Also ironic is the fact that the Supreme Court observed in its verdict that the NAB, the FIA and other regulators were not doing their job as they should. Yet they have included representatives from these very agencies to constitute the JIT.
Unsurprisingly then, and with valid reason, the opposition parties are raising questions about the chances of a fair investigation by subordinate officers and discredited agencies against a sitting prime minister. As per the terms of reference, the JIT is supposed to probe issues such as whether the Qatari letters are “a myth or reality.” The question is: can the JIT declare these letters to be the truth, after the judges of the Supreme Court have themselves rejected their authenticity? The JIT will be further handicapped in many ways when investigating the charges of money-laundering, as it will not be able to receive necessary information from other countries under the multilateral Convention on Mutual Administrative Assistance in Tax Matters, until September 2018. Pakistan became a member of the Organisation of Economic Cooperation and Development in April 2017, and will only be eligible to exchange information with member states late next year.
The PPP has announced that it will reject the JIT. Aitzaz Ahsan has emphatically claimed there is no way an employee of the government can probe the chief executive of that government. He also said that the top ranks of the army were filled with friends of Nawaz Sharif, and so the independence of the ISI too could not be guaranteed in the JIT. He also alleged that ISI chief, Naveed Mukhtar, is closely related to Maryam Nawaz through marriage. This statement drew immediate censure from the Inter-Services Public Relations (ISPR). Later, following a corps commanders conference, the ISPR vowed that the army would fulfil the trust reposed in it by the Supreme Court. “The forum pledged that the institution through its members in JIT shall play its due role in a legal and transparent manner, fulfilling the confidence reposed by the apex court of Pakistan,” read the statement issued by the ISPR after a meeting of the top military brass.
As matters stand, Nawaz Sharif is legally eligible to continue in office, but there is no doubt that his mandate and political legitimacy have been considerably weakened. All opposition parties, including the PPP, PTI, JI and PML-Q, are united on one point: he must immediately step down. And it is unarguable that if Sharif were to leave the PM’s office even temporarily, the chances of a fair and impartial probe would increase exponentially. However, since Sharif is resisting such demands, it is evident he believes that would not be in his interest.
It is widely felt that a morally upright head of state would, in the circumstances Nawaz Sharif finds himself, have dissolved the parliament and handed over power to a caretaker government to hold general elections. But to date that is not even a remote possibility. A national census is underway and as a result of that, the demarcation of electoral constituencies will take months to complete. It serves Sharif to drag the matter beyond March 2018 when the Senate elections are due, and indications are that he is likely to get a majority in the Senate.
There is already widespread conjecture that the JIT will not be able to complete its work in the court-designated two months, going by the way the Panama case dragged on for nearly nine months. It is expected that the JIT will stretch the course of the investigation’s probe indefinitely. And this is in line with Prime Minister Nawaz Sharif’s strategy — to try and drum up so much public support, at least in the Punjab, in the name of ‘development,’ that the charges of corruption against him become irrelevant and are buried in the din of proclamations of his achievements.
Since the the PML-N has dismissed the demand by opposition parties for the resignation of Prime Minister Nawaz Sharif, the latter are left with no recourse but to take to the streets to mount pressure on the Prime Minister and other state institutions to play fair. PTI chief Imran Khan has already started organising public rallies. And after four years of playing the role of a laidback opposition, the PPP, led by Asif Zardari, has also adopted a tough posture against the government.
Nawaz Sharif may be able to exploit the complexities and weaknesses of the legal system to his benefit, but it will be hard for him to manage public agitation on the streets. And it is this which will deliver the final verdict.