Not ‘Sharif’ enough

Pakistani polity has yet again shown its unwavering adherence to a unique convention: seldom letting a Prime Minister agreeably quit his office and go home with dignity. This has perhaps been the only unshakable truth that has persisted in the entirely of its existence, now falling 15 days short of a seventieth birthday. The decision of the Supreme Court (SC), composed in Calibri font to balefully rub it in, to ‘disqualify’ Mian Nawaz Sharif from the membership of the Majlis-e-Shoora, comes across as less than a hundred percent procedurally fair. The palpably selective decision smacks of a discernible populism, which may have a far-reaching negative impact on a fledgling democratic order.

After a grandiose search for capital wrongdoings, the disqualification charge against Nawaz Sharif is a sad expression of the phrase ‘making a mountain out of a molehill’ as he is charged with committing perjury by not declaring to the Election Commission of Pakistan the emoluments of his chairmanship of Capital FZE, a remote company in Dubai. The SC brushed aside protestations of defence that the job’s purpose was to obtain a visa and although it carried a salary of AED10,000, Nawaz Sharif did not draw it at all. Instead the bench decided to term emoluments as ‘anticipatory’ earnings and categorised them as ‘assets’ relying on three references from Black’s Law dictionary and Business dictionary to justify the meaning of the word. Zeroing in on a peripheral matter in lieu of so-called pivotal transgressions, and awarding a substantial sentence on its basis, eerily indicates the concrete lack of evidence about the allegations leveled against the respondents despite unleashing on them a hand-picked investigating team.

The first PM, Liaqat Ali Khan, was assassinated in 1951 and 10 out of 15 prime ministers were unceremoniously removed from office on pretexts that were morally and legally unjustified. Four of them fell to the machinations of the governor general (later president) Iskander Mirza: Muhammad Ali Bogra, HS Suhrawardy, II Chundrigar (only lasting two months), and Feroz Khan Noon

But then this appears quite normal from a Pakistani mindset that is conditioned to celebrate high-handed behaviour made palatable by the justification of something called across-the-board accountability. The gullible Pakistani public opinion welcomed the sacking of a stalwart of the Pakistan Movement, Khwaja Nizamuddin, the second prime minister, widely derided as ‘Quaid-e-Qillat’, by quite an unhinged governor general, the civil servant turned businessman Malik Ghulam Mohammad after just 18 months in office. Then, at least, as a poor sop for the shabby action, the judicial justification of his sacking was couched by CJ Munir in philosophical terms, debating the supremacy of de facto realities over nuances of de jure applications. But in our times the intellectual level has plummeted to the level of equating Nawaz Sharif with a character from a Hollywood film!

It is a sad spectacle to turn pages of history and notice the plight of the incumbents of the prime ministerial office in Pakistan. The first PM, Liaqat Ali Khan, was assassinated in 1951 and 10 out of 15 prime ministers were unceremoniously removed on pretexts that were morally and legally unjustified. Four of them fell to the machinations of the governor general (later president) Iskander Mirza: Muhammad Ali Bogra, HS Suhrawardy, II Chundrigar (only lasting two months), and Feroz Khan Noon. ZAB was removed in Zia’s coup, MK Junejo became the first victim of 58 (2)(b) and Benazir Bhutto and Nawaz Sharif its second, third and fourth victims (BB removed twice and NS once). Musharraf claimed the scalps of Nawaz Sharif and Zafarullah Khan Jamali and the SC sent Yusuf Raza Gilani packing. On the other side of the divide, Pandit Nehru reigned supreme for 17 years, going back to the hustings every five years and returning with a renewed mandate.

Nawaz Sharif is the latest PM to fall and the sequence of events leading to his disqualification are quite suspect.  After the Panama affair broke, a petition tendered by the PTI to the SC to examine it was returned with the comments: “that this petition prima facie appears to be a frivolous petition within the contemplation of Order XVII Rule 5 of the Supreme Court Rules, 1980,” as it invoked jurisdiction under Article 184(3) of the Constitution dealing with ‘enforcement of fundamental rights’ that was not permissible in light of the precedent laid down in the 1998 matter of Zulfikar Mehdi versus PIA, wherein the apex court had interpreted the term ‘public importance’ and laid down that the expression should be viewed with reference to freedom and liberties guaranteed under the Constitution, their protection and invasion of these rights in a manner which raises serious questions regarding their enforcement. The court clarified that the issues arising in a case cannot be considered questions of public importance if a decision on those issues only affects the rights of an individual or a group of individuals. It also stated that the petitioner had approached the SC without first approaching an appropriate forum under the law, and neither did the petitioner provide any justification for not approaching any other forum.

As abruptly as it was thrown out, the petition was re-admitted by the apex court, under the same helmsman and the surprising turnaround was attributed to the threat of a lockdown of Islamabad by the PTI. The initial proceedings of the trial witnessed a dismissive attitude of the adjudicators when one member of the bench remarked that petitioners were trying to bury the truth under an avalanche of newspaper clippings only worth selling pakoras on the next day. In December 2016, the retirement of CJ Jamali halted the proceedings and a new bench headed by Justice Asif Saeed Khosa was constituted and mandated to hear the case afresh. After resumption of the trial in January 2017 the tone of the bench steadily changed.

The 548-page judgment revealed a clear split between the bench with two judges disqualifying Nawaz Sharif whereas three suggested further investigating the matter. The last lines of this disagreement were written in archaic diction probably quite unsuited to the situation: “We for an individual case would not dispense with due process and thereby undo, obliterate and annihilate our jurisprudence which we built up in centuries in our sweat, in our toil, in our blood.” Conscious of its restriction not to function as a trial court, and to allay the detrimental effects of a brazen decision of two of its senior members, the SC formed a Joint Investigation Team (JIT) to probe 13 clearly identified leads, allowing it a vast remit explicitly ignoring the undesirable machinations of Pakistani prosecuting practices and the hackneyed techniques they employ. Keeping the premier civilian intelligence outfit, the IB, out of the equation while including representatives of both uniformed intelligence agencies raised many eyebrows but no notice was taken. The murky situation became murkier when a photograph of a forlorn Hussain Nawaz was surreptitiously released on social media and no one was apprehended for such a meaningful indiscretion.

It would be worthwhile to look at the 13 questions. As the matter boiled down to the ownership of four flats in London, the first five questions of the SC pertained to investigating the primary source mentioned by the Sharif family, raising financial resources for the purchase of property and transfer of these monies to London. The sixth question probed the validity of claims made by the Sharif brothers of raising large sums of money in their young ages. Two questions queried a Qatari letter and the crystallization of bearer certificates into flats. One question asked to establish the beneficial owner of Nielson Enterprises. One question inquired into the establishment of Hill Metals and two questions dealt with finding the sources of funds. The final question inquired into the huge sums of money gifted to the PM by Hussain Nawaz. The JIT provided no direct answers to all questions but one regarding the confirmation of the beneficial ownership of Maryam Nawaz of BVI companies. They highlighted three of their specific ‘findings’ that were not directly related to the queries raised by the SC viz. the confirmation of the fictitious sale/purchase agreements, falsified/tampered declarations of Trusts by the respondents as reported by a forensic expert and (smoking gun!) the confirmation of the chairmanship of Mian Nawaz Sharif of an offshore company, namely FZE Capital, UAE.

The JIT appeared to be aided by personnel working at ‘covered’ posts in Pakistani missions abroad. It was widely believed that its questioning repertoire was cleverly designed to obtain the desired answers. And to top it all, it evaded questioning the former Qatari PM who publicly ventured to bear witness to his claims of underwriting the Sharif property in London. Although profusely commenting on the Qatari link, the bench ironically did not insist the JIT interview him. On the contrary, the bench exhibited a pre-conceived rejection of the Qatari evidence. The JIT was noted for its intriguing methodology; it would take its findings to the SC fortnightly, have them approved and simultaneously see that any objections raised by the respondents were quashed. Finding themselves unexpectedly on the receiving end, the respondents were obliged to depose or face the risk of ex-parte decision. Quite astoundingly, however, all respondents the JIT queried spelt nothing out and Captain Safdar even claimed victoriously that he had satisfied the JIT members as they were his junior colleagues!

As is the wont of the Pakistani prosecution regime, no solid documentary proof was provided either to confirm or contradict a plea. They relied on pointed and loaded cross-questioning and then derived conjectural conclusions by emphasising contradictions in verbal statements and providing their version of defining an issue. Such a method could well prevail in the Pakistani prosecution milieu but it would be hard to establish it rationally. To illustrate the point, the JIT decisively disposed of important evidence from the Qatari prince by stating: “Mr. Thani refused to be subject to the jurisdiction of Pakistani laws and Pakistani courts in any manner whatsoever. He chose to delay his responses to the last minute and repeatedly asked that the jurisdiction of Pakistani laws do not apply to him. This led the JIT to conclude that it has collected sufficient evidence so the appearance or non-appearance of Al Thani was not significant”. It may be obvious to all and sundry that the JIT was not empowered to decide the matter ex-parte.

As expected, the JIT regurgitated the old material in a coordinated dossier mixing the lopsided findings of Rehman Malik and old records requisitioned from NAB and FIA. The boxes boldly tagged as ‘evidence’ were gleefully photographed and the material therein was given a sensational spin by presenting it as ground-breaking evidence. It failed to provide solid evidence about the actual ownership of the London flats as is clear from the future investigative drive envisaged in the SC decision. It also failed to ascertain an alternate money trail and provided no credible proof of money laundering.

Under the blanket cover of the Mutual Legal Assistance formula, it hired a British firm, Quist Solicitors, owned by a cousin of JIT head Wajid Zia. Under mutual legal assistance, the defence counsel pointed out that the JIT hired the services of a law firm for the collection of documents which is contrary to Section 21 (g) of the National Accountability Ordinance, 1999 Section 21 of the NAO that does not allow engagement of private persons for collection of documents from a foreign state and added that the documents obtained even through the mutual legal assistance had to qualify the test of Qanoon-e-Shahadat. Responding to this, Justice Afzal posed a counter question that whether the court can refuse to accept a document that comes under the mutual legal assistance only for the reason that it did not come through the Foreign Office. “Should we discard the document because it did not come through the proper channel?” he said leaving blank for an answer. The court also opined that the data collected by the JIT was not conclusive, hinting at sending the case to a trial court. Justice Ijazul Ahsan said: “We have not closed the doors yet. Whatever the JIT has recommended is not an order of the Supreme Court.”

The steps proposed in the final order of the Supreme Court aim at widening the investigative network by retrospective examination of all settled cases without taking into account that such a step goes against the established practices of a state (article 13) that follows a laid down pattern of settling cases pertaining not only to civil and criminal issues but also to revenue and judicial matters. Another unnerving aspect of the SC short orders aims at effectively arrogating the power of NAB and exercising it. The implications of dabbling deep in the executive domain would not set a healthy precedent as a clear distinction between respective organs of state ought to be maintained.

Ali Siddiqi is a former bureaucrat and runs an academic training outfit in Karachi. He can be reached at tviuk@hotmail.com