Apr 28

Politics and Law

Posted on Friday, April 28, 2017 in The Friday Times (Editorial)

Politics and Law

As expected, instead of settling the issue, a 3/2 judgment in the Panama Leaks case before the Supreme Court has triggered bitter political controversy and tension. Both the PMLN and PTI have celebrated their respective “victories” – one side says that all the judges agree that the Sharifs have lied about their money trail while the other says that a majority has not disqualified Nawaz Sharif. The argument has spilled over to the credentials, credibility and ability of the Joint Investigation Team to deliver a fair result in 60 days. Each side is also mulling the pros and cons of filing a review petition to swing the judgment in its favour conclusively. Meanwhile, most analysis of the judgment is coloured by the political prejudices of commentators.

Some facts, as opposed to opinions, may be stated to clear the fog. First, the “dissenting” judges have charted new legal territory in forming their opinion. This will have significant repercussions in state and society. Reliance on Articles 62 and 63 of the constitution – who is a good Muslim and who is not – is particularly fraught with dire consequences. Second, the “conformist” judges have tasked a JIT to probe the matter. This comprises most investigators from the very civilian accountability institutions in which they had earlier expressed little faith. Third, all the judges are agreed that Maryam Nawaz Sharif is not a dependent of Nawaz Sharif even as they have asked the JIT to investigate the ownership of the London properties in which she figures as a beneficial owner (according to the petitioner) or “trustee” (according to the respondents).

This last fact is important. Legally, Maryam is the only link to the London properties at the heart of the matter relating to Nawaz Sharif. He is not listed as a beneficial owner in any foreign property or offshore company. The judges have also held that his statements in or out of parliament are “irrelevant” regardless of the inaccuracies or omissions. In other words, the question of the “money trail” is now confined to the two sons and daughter of Nawaz Sharif. If the JIT can prove they have lied, they will be for the chop. Since Maryam is not dependent on Nawaz Sharif, he is not responsible for her actions.

There is, however, another way the JIT can get at Nawaz Sharif. That is by reopening the Hudaybia Paper Mills case and proving that it is a central plank in a big money laundering trail involving the Prime Minister. Whether this can be done in 60 days is a different question altogether.

There is an even more troubling fact at work here. Politics rather than law is dominating the debate. Justice Asif Khosa’s quotation from The Godfather and Balzac (“behind every great fortune there is a crime”) betrays his political prejudice. Chief Justice Saqib Nisar’s personal request to the “extraordinary” Imran Khan to relieve the political pressure on the courts is extraordinary in itself. Earlier, Justice Nisar had to publicly swear his neutrality on the Quran when he was regaled by allegations of being “close” to Nawaz Sharif. The statement from the ISPR on behalf of the Army High Command that the institution will conduct itself with neutrality and transparency is another manifestation of political pressure. A campaign of vilification against one of the “conformist” judges for obtaining a plot of land (which is his legal due routinely) from the government is also primed to shunt him into the other camp.

The fact is that from Day One, political pressure rather than legal nicety has been at the heart of the movement to oust Nawaz Sharif. It started with Imran Khan’s dharnas and protest rallies through 2014-15. When that failed to dislodge Nawaz Sharif, the opposition led by the PTI went to court, alleging massive and planned electoral rigging. When a judicial commission headed by the chief justice of the Supreme Court and approved by the opposition rejected that allegation, the PTI went back to the streets, threatening a lockdown of Islamabad last October. When the government foiled that “uprising”, the PTI returned to the Supreme Court and pressurized it into forming a commission to investigate Panamaleaks (earlier the same SC had rubbished the same petition by refusing to hear it). Meanwhile the PTI has been pressurizing the Election Commission of Pakistan to do its bidding. The PTI doesn’t want it to adjudge a petition against Imran Khan alleging massive fraud in the money trail that feeds into his election funds. The Chief Election Commissioner is now threatening to hold Imran Khan in contempt for undermining the credibility and writ of the ECP.

The scene is now set for a further politicization of the matter. The PMLN is likely to resort to counter-pressure tactics to protect itself. This is bound to draw the military into the fray as arbitrator of the last resort. We have been through that route before and it is not good for Pakistan.

Apr 26

Aapas Ki Baat 26-April-2017

Posted on Wednesday, April 26, 2017 in Aapas ki baat with Najam Sethi on Geo

 

Apr 25

Aapas Ki Baat – 25 April 2017

Posted on Tuesday, April 25, 2017 in Aapas ki baat with Najam Sethi on Geo

Apr 24

Aapas Ki Baat – 24 April 2017

Posted on Monday, April 24, 2017 in Aapas ki baat with Najam Sethi on Geo

 

Apr 21

Panamaleaks: to be continued

Posted on Friday, April 21, 2017 in The Friday Times (Editorial)

Panamaleaks: to be continued

The Supreme Court bench hearing the Panamaleaks case has finally announced a 3/2 decision after two months of deliberations over the matter of the “money trail” that led to the purchase by the Sharif family of various properties in London in the 1990s. Its conclusion: further investigations are needed before arriving at definite decisions. The voluminous and time consuming judgment suggests that a consensus eluded the bench, with some judges inclined to clutch at the spirit of the law and others still reluctant to depart from the letter of the constitution.

The judgment has not disqualified PM Nawaz Sharif as a Member of Parliament and Prime Minister of Pakistan. Instead, it has decreed the formation of a Joint Investigation Team comprising representatives of Military Intelligence and Inter Services Intelligence, plus National Accountability Bureau, Federal Investigation Agency, State Bank of Pakistan and Securities and Exchange Commission of Pakistan, to investigate (within 60 days) whether and how the Prime Minister and his two sons Hassan and Hussain acquired the money with which they bought expensive properties in London in the 1990-2005 period. The Chief Justice of Pakistan is now expected to constitute a separate bench to peruse the JIT report in July and determine the culpability of the accused. In other words, Nawaz Sharif is not yet off the hook even though the PMLN is crowing about a victory.

The opposition led by the PTI is focusing on some other salient points. Two judges have declared Mr Sharif guilty as charged while three judges think the evidence is still unconvincing in this regard. But the three judges have not ordered the PM to “step aside” while the JIT conducts its investigation. This suggests that these judges were cognizant of the dangers of setting such a legal precedent that would spell instability in the future. But this has also provoked the opposition to clutch at notions of morality and transparency and demand that the prime minister do so in order not to erode the impartiality of the JIT report. Indeed, we should expect this theme to be a central plank in the opposition’s agitation for the next two months because the heads of the SECP, NAB, FIA and SBP are appointed by the PM and questions have already been raised by the dissenting judges about the professional competence of both NAB and FIA and the impartiality of their heads.

The critical dimension of the JIT relates to its TORs. It is tasked “to collect evidence to prove that Mr Sharif and his dependents or ‘benamidars’ own, possesses or have acquired assets or any other interest therein disproportionate to his known wealth…” In other words, it is up to the JIT to collect the evidence and provide answers to the following questions: How did Gulf Steel Mills come into being? What led to its sale? What happened to its liabilities? Where did its sale proceeds end up? How did they reach Jeddah, Qatar and the UK? Whether Hassan and Hussain at that tender age had the means in the early 1990s to possess and purchase the flats; whether the sudden appearance of the letters of Hamad bin Jassem Jaber Al Thani is myth or reality. How did the Bearer Certificates crystalize into apartments? Who is the real beneficial owner of Nielson Enterprises Ltd and Hill Metal establishment? Where did the money for Flagship Investments Ltd and other companies set up by one of the sons come from? Where did the huge sums of money gifted by one of the sons to Nawaz Sharif come from? And so on.

This is going to be a tough act to follow. The members of the JIT are not exactly renowned for being forensic sleuths in money laundering cases with trails in foreign lands, especially in the short time given to them.

The most astonishing part of the judgment is Justice Asif Saeed Khosa’s dissenting opinion on the disqualification of the PM on the yardstick of Article 62 (f) for not coming clean on the money trail. Justice Khosa, it may be recalled, had earlier frowned on attempts to clutch at Articles 62 and 63 to disqualify any member of parliament. But this is offset by Justice Ijaz Afzal (who wrote the majority judgment) who argues that the Supreme Court cannot make declarations directly on the basis of Articles 62/63 and must refer these to the Election Commission if the question so arises.

Nawaz Sharif should be worried about his indictment at the hands of two senior judges. This reflects on the intensity of popular pressure on the judiciary. Equally, his sons can’t be too comfortable with the idea of appearing before the JIT to answer searching questions. But all three gentlemen must appear before the JIT and give due respect to it as a surrogate for the judiciary. Everything will now depend on the consistency and authenticity of their depositions as much as on the professional ability of the JIT to unearth any alternate and contending facts of the case.