By: Syed Sharfuddin
On 28 July 2017 a five-member bench of the Supreme Court of Pakistan announced its final verdict in the widely publicised hearing of the case on corruption-in-high-office involving the Prime Minister of Pakistan Mian Mohammad Nawaz Sharif and his immediate family members (Panama Case).
Earlier, one of the judges on the Panama Panel had said that this will be a verdict to remember for a long time in the history of Pakistan. Unfortunately, this mother of all judgements will indeed be remembered for a long time but for all the wrong reasons and will raise questions about the level of sophistication of the judiciary and the type of orders judges issue in protecting the rule of law and independence of the judiciary in a transitional democracy that is Pakistan.
The verdict immediately disqualified the Prime Minister from remaining a member of the National Assembly of Pakistan and from keeping the office of Head of Government not on charges of corruption which the court asked the country’s National Accountability Bureau to fast track through filing specific references in the Accountability Court of Islamabad, but on account of Mr Sharif failing to disclose a receivable asset of insignificant monetary value in his Asset Declaration Form submitted to the Election Commission of Pakistan for the 2013 General Election. This has nothing to do with the Panama leaks and is a decision which can be applied to all members of the National Assembly equally and the honourable court can order similar disqualification for them if their solemn declarations are found to be incorrect or missing any entries.
In Pakistan where corruption is rampant and unfortunately has become an acceptable social evil from the rich to the poor, and where everyone knows someone who has climbed rags to riches or riches to mega riches status from illegal money, it is unimaginable that only Mr Sharif’s ‘crime’ is so grave that would cost him his job. If he committed perjury by withholding information, which still needs to be debated whether withholding information in a standard form is the same as lying with intent, do we know for sure that all other elected representatives, including some of the petitioners among them, filled out correct asset declaration forms in the 2013 elections.
If the judges were compelled to apply this principle so strictly, they could have in disqualifying Mr Sharif also asked the National Accountability Bureau to scrutinise the 2013 forms of all MNAs. This ‘public good’ aspect completely escaped the honourable judges and quietly landed in the missed opportunities basket of the supreme court.
One would imagine that the judges know well about corruption-in-high office in the country where many big guns have built a reputation on that very ill. But probably they do not really live here. Consider this sentence from a quote in their earlier judgement of 20 April 2017 which is repeated again in the judgement of 28 July 2017 at the end of paragraph 9. “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.”
How old is the judiciary of Pakistan? 80 years? Yet the honourable judges are talking about building up their jurisprudence in centuries in their sweat, toil and blood. And in these 80 years one cannot but smile at the repeated collusion of the judiciary with past military regimes in justifying these under the much flogged doctrine of necessity. Yet the judgement is set in the background of Don Giovanni’s Godfather and talks about protecting due process for centuries. Are these British judges or Pakistani judges? Can someone please clarify.
But that is not the point. The point is that for most part of the April and July’s judgment the judges have placed emphasis on preserving the integrity of national institutions and reiterated that disqualifying a person without due process is not their call. After affirming that the court would not dispense with due process, and after instructing the National Accountability Bureau to file specific references against the Prime Minister and his immediate family members in the Accountability Court of Islamabad, the judges surprisingly contradict themselves in paragraph 13 and 15 by proceeding to disqualify the Prime Minister without due process.
The issue on which the disqualification is based could be debated either way as being sufficiently grave to call for a drastic action, i.e. disqualification, or not important enough in the larger context of the case, given the events of 2007 and Mr Sharif’s exile during the time of General Musharraf’s military rule when it was important for him to find a way to travel internationally without requiring lengthy visa processing time.
This omission in declaration was not a material factor to have a major impact on the full judgement on the Panama case and yet it turned out to be the only less convincing reason for the disqualification of the Prime Minister disposed of in two paragraphs in the entire judgement.
The Supreme Court decision against Mr Sharif is also procedurally flawed. The Joint Investigation Team (JIT) was formed after two senior judges had spoken their clear mind about the accused and written their verdict, and three had deferred their decision. This half disclosure of the verdict which some have called 40% decision, created an unavoidable prejudice in the mind of the investigators and made it difficult for the JIT to find anything other than what went against Mr Sharif and his co-accused family members.
The manner in which the JIT members were head-hunted by the court administration after the judgement of 20 April 2017 gave the impression that Mr Sharif’s goose was cooked but required some more seasoning before it was served. The old adage was proved right that the more you dig the more you find the dirt. This is what JIT did. Although the additional investigation conducted by the JIT could not uncover any seedy scandals of perverted sex, family feuds, pub crawling or casino hunting involving the Sharifs, it did find a lot of Aqamas for them in a Gulf State every Pakistani loves to visit. One of the petitioners in the case Mr Siraj-ul-Haq, Ameer Jamat-e-Islami Pakistan could probably explain it better what else is meant by Sadiq and Ameen if a person holding a high office in Pakistan has none of these major vices in his character.
In the manner of popular soap series the ‘final’ judgement of 28 July 2017 does not put any closure on the Panama case. The next episodes will be showing the Sharifs in the Accountability Court in response to the various references the National Accountability Bureau will file in compliance with the court order, and a nominated judge will supervise its implementation. A good western principle of justice is its speedy dispensation but here the court has made it a point to keep the saga alive perhaps to teach a lesson that corruption does not get punished once but comes in instalments.
It is not denying that the past record of Mr Sharif and his submissions to the JIT did not help his case but the verdict was also not perfectly stitched up in both substance and procedure that has made the decision open to question by the Noon team and by future lawyers who may study it as case material.
28 July 2017