Flawed hearing

The Panama Papers shattered Pakistan Prime Minister Nawaz Sharif’s image, but the court proceedings against him were not founded on solid evidence.

Pakistan Prime Minister Nawaz Sharif.

"But this much I do know—that a society so riven that the spirit of moderation is gone, no court can serve; that a society where that spirit flourishes, no court need serve; that in a society which evades its responsibility by thrusting upon the courts the nurture of that spirit, that spirit in the end will perish.”

—Judge Learned Hand in a lecture on “The Contribution of an Independent Judiciary to Civilisation” in Boston on November 21, 1942 (emphasis in the original).

THE five judges of the Supreme Court who delivered the judgment in the Panama Papers case, on April 22, 2017, created, each in his own way, a terrible mess for their nation to cope with.

On April 3, 2016, the International Consortium of Investigative Journalists (ICIJ) released some information leaked from the internal database of a law firm named Mossack Fonseca based in Panama. It was published in the print and electronic media worldwide on April 4, 2016, with details of a large number of offshore companies, established in different countries, providing tax havens and owned or controlled by hundreds of persons and entities based in different countries of the world. The information also revealed that many political and public figures in different countries and their families, including the children of Pakistan’s Prime Minister Nawaz Sharif, held or owned valuable assets in different parts of the world through such offshore companies.

Following an uproar, Sharif spoke twice on television and once in the National Assembly. His sons, Hussain and Hassan; his daughter Mariam Safdar; and her husband, Captain M. Safdar (Respondent No. 9), figured in the case as did Finance Minister M. Ishaq Dar, father of the Captain.

Sharif was in business even when he was Chief Minister of Punjab and Prime Minister of the country. His political career began in 1981. He severed his business links in 1997. All the agencies and officers concerned, including the Speaker of the National Assembly, failed to act on the disclosures.

An effort was made to act on the Prime Minister’s offer of a commission of inquiry headed by a Supreme Court judge. But his party, the Muslim League (Nawaz), the opposition Pakistan People’s Party, Imran Khan’s Tehreek-e-Insaaf and others disagreed on its terms of reference (TORs). Imran Khan, Sheikh Rasheed Ahmed of the Awami Muslim League and Siraj-ul-Haq of the Jamaat-e-Islami moved the Supreme Court.

They prayed, in short, for a declaration that the Prime Minister (Respondent No.1) was not “honest” and “ameen” within the purview of Article 62(1)(f) of the Constitution and that on the basis of such a declaration he might be disqualified from membership of the National Assembly; the closed cases of corruption, corrupt practices and money laundering against him and others might be reopened for fresh investigation and prosecution; and the Chairman, National Accountability Bureau (NAB), and the Chairman, Federal Board of Revenue, might be directed to take every step possible under the law to recover the plundered wealth of the nation and to bring the culprits to book.

The court decided, with the concurrence of all, that “it might not be possible for this court to take stock of the entire gamut of the business activities and personal lives of Respondent No.1 and his family within the limited scope of these petitions and, therefore, these petitions would be decided by focussing mainly, but not exclusively, on the properties relevant to Respondent No.1 and his children which were revealed through the Panama Papers.” These were four large flats in Avenfield House, Park Lane, London in Mayfair, mostly owned by two Panama-based offshore companies, worth millions of pounds.

Article 199 of Pakistan’s Constitution vests the High Courts with a wide jurisdiction to enforce the rule of law even if there is no violation of fundamental rights. In contrast, Article 184(3), which the petitioners invoked, vests in the Supreme Court the power to make similar orders, as those under Article 199, if “a question of public importance with reference to the enforcement of any of the Fundamental Rights is involved”. It is too late to ask how fundamental rights were “involved” in this case. Like the Indian Supreme Court, the Supreme Court of Pakistan has invoked the provision, widening its import, most notably in Air Marshal (Retd) Asghar Khan’s case in which the skulduggery in Prime Minister Benazir Bhutto’s ouster in 1990 was established. The ouster involved President Ghulam Ishaq Khan, Army chief Gen. Aslam Beg, the Director General (DG) of the Inter-Services Intelligence (ISI) Gen. Asad Durrani, and Mehran Bank. Its beneficiary was Nawaz Sharif.

Non-justiciable Act The constitutional provision invoked against the Prime Minister is Article 62 of the Constitution enacted in 1973 containing the usual qualifications for membership of the parliament. However, after the coup of 1977, the military dictator Zia-ul-Haq inserted clauses of the kind not found anywhere in the world. On March 2, 1985, he made the Revival of the Constitution of 1973 Order (President’s Order No. 14 of 1985) which recast Article 62 to include three clauses which read: “(d) he is of good character and is not commonly known as one who violates Islamic injunctions; (e) he has adequate knowledge of Islamic teachings and practices obligatory duties prescribed by Islam as well as abstains from major sins; (f) he is sagacious, righteous and non-profligate and honest and ameen.” This applies to his election. Article 66 applies to this stage as well as the later stage—from continuing as a member of parliament. It also sets up a mechanism; namely, reference by the Speaker to the Chief Election Commissioner.

Sharif was found guilty by two judges under clause (f) as being not “honest and ameen”. They must surely be read with the earlier words in the clause “sagacious, righteous and non-profligate” (an exquisite term).

A glance at those clauses is enough to suggest that they are by their very terms simply non-justiciable. No court can enforce them, still less the poor Chief Election Commissioner. How will he decide that a member of parliament is “non-profligate”? The order was a prelude to the infamous Eighth Amendment enacted in November 1985. Together, they ensured Zia’s grip on the civilian government that came to power. Ironically, it is this Article 62 that has put his protege, Sharif, in a pickle in 2017. It was devised to enable Zia to sack people he disliked. It is inherently unenforceable by a law court, as are the Directive Principles of State Policy under the Indian Constitution and the “Principles of Policy” (Articles 29-40) in the Constitution of Pakistan. On April 24, 2017, the Supreme Court of India rejected a politician’s petition that sought to enforce the “Fundamental Duties” listed in Article 51A.

That said, the Supreme Court of Pakistan has invoked Article 62 over the years with qualifications. The two judges who invoked it to sack Prime Minister Sharif at once shed them, flouting the norms of the judicial process and the limitations of the judicial office.

A judge’s bias Five judges on the bench gave five judgments. Two of them were Justices Asif Saeed Khan Khosa, a respected judge, who is due to head the court, and Gulzar Ahmed, who concurred with him. Justices Ejaz Afzal Khan, Asmat Saeed and Ijaz-ul-Ahsan constituted the majority.

Moral indignation and a desire to make history shaped Justice Khosa’s bias, which is writ large in his judgment. Literary allusions are not out of place, but one quoted at the very outset to insinuate “a crime” is. It is followed by a reference to “a constant murmur nationally as well as internationally about Respondent No.1 (Nawaz Sharif) indulging in corruption, corrupt practices and money laundering etc. with the active assistance and involvement of Respondent No.10 (Ishaq Dar)”. True, but it is not for a judge to take judicial notice of a “murmur” and retail it. He is to act on evidence before the court, unaffected by gossip.

Sample these. “Money laundering is an allegation which is not new” to Sharif (page 119). His “brush with criminal law is also not new” (page 120). The past is dug up to justify the proceedings. The ridicule poured by one and all on “the Qatar letter”, belatedly produced by Sharif, is justified. Not so, this extrajudicial excursion: “Being a foreign dignitary Mr Hamad Bin Jassim Bin Jaber Al-Thani is held by me in high esteem yet the information about him available on the Internet is unfortunately quite uncharitable and the same is reproduced below without making any comment of my own on the same.” It is reproduced in full in his judgment. Have you ever before heard of such a lapse in a judgment? Willing to wound, afraid to strike? Such a taste for gossip is cheap. It is unworthy of a judge. The man was denounced without being heard. In contrast, the three politician petitioners are extolled: “Like the ICIJ the petitioners have acted in the matter as whistle-blowers.” Those petitioners simply transferred their fight from the political arena to the Supreme Court. They were not disinterested whistle-blowers.

Justice Khosa stressed that the proceedings were “inquisitorial”, not “adversarial”, and “even disputed questions of fact could be looked into”. He pronounced Sharif guilty. “The declaration by this court through the present judgment regarding lack of honesty of Respondent No. 1 (Sharif) cannot be undone or ignored by the Speaker or the Election Commissioner of Pakistan and such a declaration has to have an immediate effect” (page 166). He found that Sharif “has not been honest to the nation”; disqualified him as an M.P.; and ordered proceedings against him under the National Accountability Ordinance, 1999, for corruption. The President was not spared: “The President of Pakistan is required to take necessary steps under the Constitution to ensure continuation of the democratic process through parliamentary system of government in the country.” It is one thing to disqualify a Prime Minister, another, to “require” insolently of the President to take steps on the disqualification.

Justice Khosa helpfully drew up charts to establish Sharif’s very many contradictions, as also those of his sons, for which no explanation was forthcoming. But the matter cannot rest there, except for the obvious comment. Censure requires something more. Section 145 of the Evidence Act embodies a principle followed by all courts. If a witness is to be contradicted by a previous statement, “his attention must be called to those parts of it which are to be used for the purpose of contradicting him”.

Contradictions must be put to the person specifically and his explanation invited. Proceedings of Tribunals of Inquiry are also inquisitorial. The Report of the Salman Commission on Tribunals of Inquiry (1966) listed six safeguards to protect reputations.

However, after roundly condemning Sharif, Justice Khosa warned: “I would, therefore, like to clarify in the present case in advance that the declarations and the observations made by me in the constitutional context shall not influence or prejudice the inquiry, investigation or prosecution of any criminal activity or conduct involved in the matter and that the Accountability Court to be seized of the case shall adjudicate upon the criminal aspect of this case without being influenced or prejudiced by anything observed or done by this court in the present proceedings.” Can the agencies ignore his severe censures?

Flawed procedure There is something fundamentally wrong with the procedure adopted by the bench. It did not ask for detailed sworn affidavits from all the parties with para-wise affidavits in rebuttal. It was content, as the judges mention, with a “concise statement”. What was the evidence on record, pray? Justice Ijazul Ahsan mentions: “documents recovered from the database of Mossack Fonseca, a law firm operating in Panama. It appears to be engaged in the business of setting up and structuring offshore companies. The documents were placed on the website of International Council of investigative Journalists (ICIJ) and are commonly referred to as the ‘Panama Papers’. The case of the petitioners is primarily based on information and documents downloaded from the said website.”

Justice Ejaz Afzal Khan remarked: “A bulk of unauthenticated documents brought on the record by the petitioners is pitched against another bulk of unauthenticated documents brought on the record by the respondents.” Why on earth did the court take such material “on the record”? Justice Azmat Saeed’s comments are scathing and very revealing. “The documents are, in fact, copies, including of emails, and are by and large unsigned. Furthermore, the said documents to the extent that the same pertains to the private Respondents are, in fact, denied. In the circumstances, only an innocent simpleton could expect this court to give a finding or pronounce judgment based upon the copies of unsigned documents, which are disputed and have not come from proper custody. This is a legal impossibility in view of the provisions of Qanun-e-Shahadat Order, 1984. Such documents cannot form the basis of a judicial pronouncement in any civilised country with a developed or even a developing legal system. There is no legal precedent, in this behalf.”

He added: “The parties were initially heard in an effort to narrow down the controversy and formulate fair and result-oriented TORs. Proposed TORs were filed by all the sides. It was understood between the parties that a Commission would be appointed, as is obvious from the order of this court dated 07.11.2016.….

“However, on 09.12.2016 Mr Naeem Bokhari, learned counsel for the Petitioner in Constitution petition No.29 of 2016 (Imran Khan) on instructions, in a rather belligerent tone, stated that a Commission by a judge of this court was not acceptable and the matter be decided by this court on the existing record . The relief of the opposite side could barely be concealed. One of the unsolved mysteries of the case is this sudden change of heart by the petitioners and more importantly what persuaded the petitioners to believe that a definitive finding could be given by this court on the photocopies of disputed unsigned documents not coming from a proper custody or Respondent No.1 could be disqualified on mere allegations emanating out of the Panama Papers.

“However, in order to initiate proceedings for an alleged offence under Section 9(a)(v) of the NAB Ordinance, the allegations seriously levelled may be sufficient. On its constitutional jurisdiction being invoked, this court and the High Court may direct initiation of such criminal proceedings. Obviously, neither this court nor the High Court can directly convict a person, while exercising its constitutional original jurisdiction that too without recording any evidence .” Why then did the bench submit to the belligerence of Imran Khan’s counsel? Was it because the bench was a house divided? Or was it to placate public opinion? As a result of this climbdown, the case heard for 26 days on such material. Justice Azmat Saeed cited 24 cases in which persons were disqualified under Article 62 but only after the facts were ascertained by a competent legal forum .

He referred to the hawala case in India as well as Ram Jethmalani’s plea for a Special Investigative Team on money in foreign banks. Justices Ejaz Afzal Khan, Azmat Saeed and Ijaz ul Ahsan concurred in setting up a Joint Investigating Team (JIT) comprising representatives of six agencies—the Federal Investigation Agency, the NAB, the Security and Exchange Commission and the State Bank of Pakistan plus two more who do not fit into such a group: “a seasoned officer” of the ISI nominated by its DG and “a seasoned officer” of Military Intelligence nominated by its DG.

Generals in a political game In an editorial the very next day, Dawn , a national daily, questioned their inclusion: “Civilian matters should be probed, adjudicated and resolved in the civilian domain. And if the court has little faith in civilian institutions, as is indicated in its verdict, it could have put its trust in a judicial commission.”

Indeed, that was precisely the course the court should have adopted. Regardless of Imran Khan’s volte-face , it could have finalised the terms of reference itself and set the commission going. On the same page was published an article by the Dawn columnist Zahid Hussain. The court brought “the military into a probe against a sitting Prime Minister. The involvement of the intelligence agencies in a purely financial inquiry may have serious political ramifications. One wonders about the rationale behind it. How can the spy agencies conduct an investigation into a financial scandal? The decision makes the generals a party in a political game that may have serious consequences for civil-military relations.”

The response from the Army was swift. On April 24, the Army said that the 202nd Corps Commanders Conference discussed the case “with special reference to the JIT.… The forum pledged that the institution , through its members in joint investigation team, shall play its due role in a legal and transparent manner fulfilling confidence reposed by the apex court of Pakistan.” Will the Army decide the fate of Pakistan’s Prime Minister?

That court knew very well what it was doing. The Army’s men will dominate the rest whose nominees will act as individuals. The Army’s men will serve as its delegates or representatives and will carry out the General Headquarters’ instructions. The minority of two judges undermined democracy by their interpretation of Article 62. The majority has buried it for good; but in doing so, it crafted a weapon even more harmful to democracy than the interpretation—the JIT.

Sharif under cloud Mian Mohammed Nawaz Sharif does not emerge from the proceedings, however flawed, smelling of roses. Exuding malodour for his greed for money and power, he now stands exposed thoroughly. Every one of the five judges has censured him for lack of truthfulness, some for deceit. The very precise questions that the court has formulated for a probe put him under a menacing cloud. How can he remain in office while the investigations are on? He and his sons contradicted themselves and one another with abandon.

Reginald Maudling resigned as Home Secretary in Britain, on July 18, 1972, although he was, as The Economist put it, “neither accused nor suspected of any crime, either in connection with the bankrupt architect, Mr John Poulson, or anyone else. As, however, Mr Poulson’s other activities are now the subject of investigation by the Metropolitan Police, over whom the Home Secretary is police authority, it is sensible that Mr Maudling should have given up the Home office while the lengthy inquiries go on. That in itself, however, is no reason why Mr Maudling should have left the government entirely: indeed, he was asked by Mr Heath (the P.M.) to stay on in another job.” Maudling declined.

Sir Ivor Jennings observed on page 106 of his book Cabinet Government : “The most elementary qualification demanded of a Minister’s is honesty and incorruptibility. It is, however, necessary not only that he should possess this qualification but also that he should appear to possess it.”

Prime Minister H.H. Asquith, while dealing with the qualifications of a Minister in the Marconi debate of 1913, observed: “The first …and the most obvious is that Ministers ought not to enter into any transaction whereby their pecuniary interests might, even conceivably, come into conflict with their public duty.” (See page 109 of Cabinet Government .) A.B. Keith in British Cabinet System 1830-1938 observes on page 186: “In the interests of sound administration, it is plain that a Minister should have no business appointments or directorship which might interfere with complete regard for his duties, and that he should never have any commercial dealing of a kind which may give rise to suggestion that he is preferring personal advantage to state interest.” Admittedly, from 1981 to 1997, Sharif flouted the rules. These dicta apply also to Ishaq Dar.

Fazlul Huq & Calcutta High Court Nearly 75 years ago, the Calcutta High Court delivered a judgment of great importance couched in excellent prose. The court criticised the Chief Minister of Bengal, A.K. Fazlul Huq’s misconduct in interfering in the trial of a criminal case by a District Magistrate. Chief Justice Derbyshire observed: “A person who takes an oath or makes an affirmation to tell the truth in a judicial proceeding and breaks it is guilty of perjury and may be punished at law by the courts. A person, however, who on taking up an office is required by law to take an oath of office that he will faithfully perform the duties of that office takes what is called a promissory oath. The breach of a promissory oath, in the absence of a special provision of law to that effect, is not punishable at law. As far as I am aware there is no punishment in law for the breaking of the promissory oath taken by Mr Fazlul Huq when he assumed office as Chief Minister.

“But the clear violation of it brands a man as unfit for public office. If solemn promissory oaths by persons who take high office in the State are to be disregarded as mere formalities there is no possibility of good government. Mr Huq is left to the contemplation and judgment of his fellowmen.” That is where we must leave Nawaz Sharif.