Disqualification
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Saad Rasool |

The three-member implementation bench of the honorable Supreme Court of Pakistan has reserved its judgment in perhaps the most publicized case in Pakistan’s constitutional history. And as the nation waits, with bated breath, for the honorable Court to render its final verdict, muted whispers have started asking who (actually) is on trial here: Nawaz Sharif and family, or the project of justice itself?

Read more: Panama JIT reviews the questionable history of the Sharif family

Beneficiary of a paradigm

The rich have become richer, while Allah Ditta continues to ‘suffer the slings and arrows of outrageous fortune’. And today, this fissure between the ‘haves’ and the ‘have-nots’ has grown to an insurmountable crevice.

It is no secret that the process of accountability of the rich and powerful, in Pakistan, has been (for the most part) a non-starter. Over the past seventy years of jurisprudence, the empire of our laws has remained wholly ineffective against the powers of status quo, resulting in the accumulation of unbridled power and wealth by a select few. Throughout this time, the rich have become richer, while Allah Ditta continues to ‘suffer the slings and arrows of outrageous fortune’. And today, this fissure between the ‘haves’ and the ‘have-nots’ has grown to an insurmountable crevice. All within plain sight of our courts and the law.

None has been a greater beneficiary of this paradigm than Mr. Nawaz Sharif.

At occasions, the Honorable Court bent the law (against all dictates of established jurisprudence) to grant him relief. Decades of delay were condoned. Review petitions were turned into appellate proceedings. And the likes of Justice (R) Ramday played their role to ensure that Nawaz Sharif returns to power.

Ever since his appearance on the political scene, in the early 1980s, under the patronage of General Zia-ul-Haq, Mr. Nawaz Sharif has been riddled with accusations of financial corruption. However, being in power has also meant that he has retained a grip on all agencies and institutions that had the power to prosecute him. The few convictions rendered against him (during years of exile) were quickly overturned by the honorable Courts, upon his return to power. In fact, at occasions, the Honorable Court bent the law (against all dictates of established jurisprudence) to grant him relief. Decades of delay were condoned. Review petitions were turned into appellate proceedings. And the likes of Justice (R) Ramday played their role to ensure that Nawaz Sharif returns to power.

A look into our court rooms

We all made peace with cases such as Hudabiya Paper Mill, and the Model Town massacre. We made peace with the fact that Nawaz Sharif will rule over us till he dies. And then his children will carry forward this torch.

Gradually, a narrative took hold in Pakistan: our courts do not, and will not, pass adverse orders against Takht-e-Lahore.  And in light of this narrative, developed over three decades, we all made peace with cases such as Hudabiya Paper Mill, and the Model Town massacre. We made peace with the fact that Nawaz Sharif will rule over us till he dies. And then his children will carry forward this torch. Till the day when mountains are scattered like carded wool.

Read more: Curious case of Hudabiya Mills

The Panama Leaks case – an international conspiracy? – threatens to upset this paradigm. It holds the promise to reverse the tide of history, and unlock a new age of political and financial accountability. And, once again, the honorable Supreme Court of Pakistan holds the key.

Eligible for disqualification?

While some portion of the case (relating to money laundering, tax evasion, illegal sources of income, etc.) will have to be necessarily referred to the trial court, the immediate question before the honorable Court is whether there is enough material to disqualify the Prime Minister, without trial, in exercise of Article 184(3) of the Constitution?

Even a ‘Returning Officer’, who exercises summary jurisdiction, can disqualify candidates on the basis of Article 62/63, without trial.  And the honorable Supreme Court, under the Constitution, can ignore minor technicalities while pursuing the ideal of “complete justice” (Article 187).

To answer this question, let us first recognize that the honorable Supreme Court, in the past, has disqualified Parliamentarians, without trial (e.g. dual nationality and fake degrees cases). In fact, even a ‘Returning Officer’, who exercises summary jurisdiction, can disqualify candidates on the basis of Article 62/63, without trial.  And the honorable Supreme Court, under the Constitution, can ignore minor technicalities while pursuing the ideal of “complete justice” (Article 187).

Read more: Can the SC disqualify the PM (and Maryam Nawaz) without referring

So is there enough prima facie evidence to warrant disqualification of Sharif family? Well, to mention just a few facts, admittedly the properties of London are owned by Sharif family, without any available money trail; Nawaz Sharif served as Chairman of FZE Capital, was entitled to a salary, and continued to hold an ‘iqama’, all hidden from the public eye; Rs. 45 million of non-declaration on Nawaz Sharif’s 2013 Wealth Statement remains unexplained; Qatari letter remains unsubstantiated; trust deed, submitted before the honorable Supreme Court, has turned out to be fake; Financial Investigation Agency and the Advocate General of BVI has confirmed that Maryam Nawaz is the beneficial owner of Neilson and Nescoll; Gulf Steel Mill remains an enigma; living beyond means case has not been rebutted; the statements of Tariq Shafi, Hussain Nawaz, Hassan Nawaz and Shahbaz Sharif, all contain incorrigible contradictions; Hijazi has been caught tampering SECP documents; Sharif family lawyers are on the record for having submitted erroneous (fake?) documents in the honorable Supreme Court; and two senior judges of the honorable Supreme Court, along with a unanimous JIT, have already rendered damning conclusions against Sharif family.

Enough evidence to convict the defendants?

There is always enough reason to not ruffle the status quo. Article 184(3) can be read in a restrictive manner; Articles 62 and 63 can be interpreted to mean that only a trial can result in disqualifications; fake documents can be ignored

On the other hand, is there enough legal justification to not disqualify or convict Nawaz Sharif? Of course. There is always enough reason to not ruffle the status quo. Article 184(3) can be read in a restrictive manner; Articles 62 and 63 can be interpreted to mean that only a trial can result in disqualifications; fake documents can be ignored, and a JIT (monitored by the court itself) can be deemed biased.

What the honorable Court eventually decides, we will all find out soon enough.

Read more: Panama Case: should Supreme Court render the final judgment?

No one should be blamed for asking tough questions and raising pertinent concerns about our system of justice. About how our Courts never convict the likes of Nawaz Sharif, no matter what the evidence. About how expensive lawyering can trump cold hard facts. About the arc of our jurisprudence, which is bent in favor of the Punjabi elite.

But if the honorable Court decides not to disqualify MNS, despite the available evidence, no one should be blamed for asking tough questions and raising pertinent concerns about our system of justice. About how our Courts never convict the likes of Nawaz Sharif, no matter what the evidence. About how expensive lawyering can trump cold hard facts. About the arc of our jurisprudence, which is bent in favor of the Punjabi elite. And about how our Constitution and the law is a mighty document when prosecuting Allah Ditta. But never for Nawaz Sharif.

Read more: Justice delayed is Justice denied: Panama Case nearing the end?

Questioning the judiciary

In such eventuality, we would be correct in asking why our judicial system favors an individual who is guilty but rich, as opposed to one who is innocent but poor. About how wealth and power – not culpability – determines the scales of justice in Pakistan. About how rich foreign friends, who are willing to provide affidavits written on the back of a paper-napkin, are more important than any shred of the money trail. About how governmental advertisements, as opposed to truth, can determine the national narrative. And why individuals like Daniyal Aziz, Talal Chaudhary, and Nihal Hashmi should not be consistently used as part of a successful ‘legal’ strategy.

Read more: Panama case: Is Nawaz Sharif’s political career coming to an end?

Let us scrap the accountability process, and determine a minimum quantum of wealth… beyond which the reach of our laws fizzles out.

If the honorable Supreme Court of Pakistan allows Nawaz Sharif to escape through the porous technicalities of law, let the same standards be extended to the thousands of hapless people who are needlessly suffering the pangs of our justice system. Let us free all those caught in petty theft and concocted FIRs. Let us scrap the accountability process, and determine a minimum quantum of wealth… beyond which the reach of our laws fizzles out.

One day there will be no way to hide behind mountains of gold, Qatari letters, expensive lawyers, legal technicalities, or interpretations of Article 184(3). And a ruler – who amassed personal wealth, just as people in his realm were dying of hunger – will have to answer for every penny stacked away.

Let us also remember, that on that final day of reckoning, when these momentary fiefdoms have been turned to dust, we will find ourselves before His eternal Seat of Power. On that day, there will be no way to hide behind mountains of gold, Qatari letters, expensive lawyers, legal technicalities, or interpretations of Article 184(3). And a ruler – who amassed personal wealth, just as people in his realm were dying of hunger – will have to answer for every penny stacked away. And so will everyone else who abetted him, or allowed his rule to perpetuate.

Read more: Panama case sharpens existing divisions within the PML-N

Post-Script:

there is still no consensus on whether the Panama case will be decided by this three-member bench, or referred back to the original five-member bench. To this end, it is pertinent to point out that the five-member bench did not render its final judgment (disposing of the petitions), vide its (interim) “Order of the Court”, dated 20th April 2017. As such, after completion of the JIT Report, the three honorable members of this implementation bench must render their final judgment as part of the original five-member bench. And the opinion of Justice Khosa and Justice Gulzar must count towards the final verdict, whatever that might be.

Saad Rasool is a lawyer based in Lahore. He has a Masters in Constitutional Law from Harvard Law School. This piece was first published in The Nation. The views expressed in this article are the author’s own and do not necessarily reflect Global Village Space’s editorial policy.

Saad Rasool is a lawyer based in Lahore. He has a Masters in Constitutional Law from Harvard Law School.

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