On Friday July 28, 2017 the Supreme Court of Pakistan (the Supreme Court) disposed off the constitutional petitions regarding the Panama Papers (the PP Judgment). The Supreme Court held the Prime Minister of Pakistan, Mian Muhammad Nawaz Sharif, as dishonest, and disqualified him in accordance with Article 62(1)(f) of the Constitution of the Islamic Republic of Pakistan, 1973 (the Constitution). The Supreme Court declared that:
“… having failed to disclose his un-withdrawn receivables constituting assets from Capital FZE, Jebel Ali, UAE in his nomination papers filed for the General Elections held in 2013 in terms of Section 12(2)(f) of the Representation of the People Act, 1976 (ROPA), and having furnished a false declaration under solemn affirmation respondent No. 1 Mian Muhammad Nawaz Sharif is not honest in terms of Section 99(f) of ROPA and Article 62(1)(f) of the Constitution of the Islamic Republic of Pakistan, 1973, therefore, he is disqualified to be a Member of the Majlis-e-Shoora (Parliament)…”
Furthermore, the Supreme Court gave the following directions, amongst others, in its final order of the PP Judgement:
“…The National Accountability Bureau (NAB) shall within six weeks from the date of this judgment prepare and file before the Accountability Court, Rawalpindi/Islamabad, the following References, on the basis of the material collected and referred to by the Joint Investigating Team (JIT) in its report and such other material as may be available with the Federal Investigation Agency (FIA) and NAB having any nexus with assets mentioned below or which may subsequently become available including material that may come before it pursuant to the Mutual Legal Assistance requests sent by the JIT to different jurisdictions:-
a) Reference against Mian Muhammad Nawaz Sharif, (respondents No. 1), Maryam Nawaz Sharif (Maryam Safdar), (Respondent No. 6), Hussain Nawaz Sharif (Respondent No.7), Hassan Nawaz Sharif (Respondent No. 8) and Capt. (Retd). Muhammad Safdar (Respondent No. 9) relating to the Avenfield properties (Flats No. 16, 16-A, 17 and 17-A Avenfield House, Park Lane, London, United Kingdom). In preparing and filing this Reference, the NAB shall also consider the material already collected during the course of investigations conducted earlier, as indicated in the detailed judgments;
b) Reference against respondents No. 1, 7 and 8 regarding Azizia Steel Company and Hill Metal Establishment, as indicated in the main judgment;
c) Reference against respondents No. 1, 7 and 8 regarding the Companies mentioned in paragraph 9 of the judgment unanimously rendered by Mr. Justice Ejaz Afzal Khan, Mr. Justice Sh. Azmat Saeed and Mr.Justice Ijaz ul Ahsan;
d) Reference against respondent No. 10 for possessing assets and funds beyond his known sources of income, as discussed in paragraph 9 of the judgment unanimous rendered by Mr. Justice Ejaz Afzal Khan, Mr. Justice Sh. Azmat Saeed and Mr. Justice Ijaz ul Ahsan…
“In hearing the Panama Papers Case, the Supreme Court had constituted a Joint Investigation Team (JIT) to inquire into claims of financial impropriety made primarily against the now ex Prime Minister, Nawaz Sharif, and his family. Following the submission of the investigation report by the JIT (the JIT Report), the Supreme Court did not take long to issue a final judgement in the Panama Papers Case – Nawaz Sharif was disqualified from holding public office for being dishonest under the umbrella of Articles 62 and 63 of the Constitution, and references were directed to be filed by the National Accountability Bureau (NAB) before an accountability court against Nawaz Sharif and his children, amongst others. The Supreme Court held that Nawaz Sharif was “dishonest” for failing to disclose his source of income through Capital FZE (a Dubai based company Nawaz Sharif was receiving a salary from), while submitting his nomination papers for the Pakistani general elections in 2013.
In the aftermath of the PP Judgement, the still ruling party, Pakistan Muslim League – Nawaz (PML-N), elected ex-Petroleum Minister Shahid Khaqan Abbasi as the new Prime Minister of Pakistan. Shortly after this election, Nawaz Sharif took on a journey to return home to Lahore from Islamabad. A contentious decision was taken to have Nawaz Sharif’s homecoming journey on the Grand Trunk Road (the GT Road). The agenda of Nawaz Sharif and his party, PML-N, behind this decision to have the homecoming journey on the GT Road, was quite simply to attempt to sway public opinion in light of the PP Judgment. It was also a quite brazen show of power from Nawaz Sharif and his party, PML-N, to showcase the support they still held in Pakistan.
Given the fact that the upcoming general elections will be held in Pakistan in less than a year’s time, the decision to travel via the GT Road was also politically motivated. This became more apparent as the caravan moved on, when the ousted Prime Minister asked a very naive question over and over again at different stops en route to Lahore: “…mujhey kyun nikala (why was I ousted)?…”. Nawaz Sharif also asked his supporters time and again if the PP Judgement was acceptable to them, in what was perceived to be a clear challenge to the authority of the Supreme Court of Pakistan. Indeed, this was a very dangerous line to toe, one which can potentially have very serious repercussions for Pakistan.
Nawaz Sharif continuously questioned the sanctity of the vote by asking whether five (5) judges should be able to oust a Prime Minister elected through votes in excess of fourteen (14) million. Nawaz Sharif even proposed amending the Constitution to protect the sanctity of the vote in his public addresses (whatever he meant by this) because, under the current constitutional regime of Pakistan, the sanctity of the vote is already protected. This is also notwithstanding the fact that the Supreme Court, under the Constitution, acts independently and autonomously under the principle of trichotomy of powers.
Even though the reaction of Nawaz Sharif and his ruling party, PML-N, in light of the announcement of the PP Judgement has been petty and vindictive at best, there remains a very simple truth in between all the point scoring: Nawaz Sharif was ousted from his position as Prime Minister for not being honest – for failing to disclose a source of income in his nomination papers for the general election in 2013. Even a layman could ascertain from the Panama Papers proceedings that the Sharif family was consistently trying to hide something. This is the very definition of being dishonest.
However, legally speaking, there are some questions raised by the PP Judgement that merit further analysis. The PP Judgment was based on the fact that Nawaz Sharif was admittedly holding a position of Chairman at a company based in Dubai, UAE. Though he was not withdrawing a salary for the said post, yet it was not disputed that the said position was entitled to a salary. Therefore, considering the position of entitlement to a salary is admitted, the very fact that the entitled salary was not withdrawn would necessarily imply that the entitled salary is hence a receivable; which, according to its dictionary definition, constitutes an asset. Since a receivable is an asset, the same was required to be disclosed by Nawaz Sharif in his nomination papers for contesting the general elections in 2013. And because Nawaz Sharif failed to disclose this receivable, he failed to disclose his complete assets and hence is dishonest and consequently disqualified from being a Member of the National Assembly of Pakistan.
The PP Judgment strains on too many legal principles. For example, in terms of the prevailing tax laws in Pakistan, a person is only required to declare income which the person has earned during a tax year. Receivables are not factored in while calculating income. So how do the “un-withdrawn receivables” then constitute assets when the tax laws of our country do not even recognize them as income?
There is another question that the Supreme Court did not delve into, one of intent. In order to find a person honest or dishonest, there has to be an act which would be committed based on which a person is declared honest or dishonest. In terms of jurisprudence that has been developed in our country, an act can be declared as honest or dishonest based on the intent behind that act. Therefore, it is the intent behind an act that has to ascertained before determining the honesty of a person. The Supreme Court has held that it is an admitted fact that a post of Chairman was being held by Nawaz Sharif and it is not denied that the said post was entitled to a salary. However, what has not being taken into consideration by the Supreme Court is whether not withdrawing a salary a person was entitled to, would actually amount to a person forgoing or waiving the salary. And if so, would it still amount to a receivable and hence an asset? The Supreme Court, in order to settle the law, and leaving no room for doubt, should have inquired into this fact to ascertain the intent behind not declaring “un-withdrawn receivables”. The Supreme Court, in its verdict, by not defining any parameters for determining legal honesty and by simply holding that “un-withdrawn receivables” are assets without ascertaining the intent behind non declaration of “un-withdrawn receivables” has left too many legal questions unanswered, hence leaving room for further discussion.
As was expected, the Sharif family instituted review petitions before the Supreme Court in order to challenge the PP Judgment and by default, the disqualification of the then Prime Minister Nawaz Sharif. The Supreme Court, vide its short order, has dismissed all review petitions filed by the Sharif family without much fanfare. Therefore, the issue of disqualification is now well and truly settled as far as the legal implications are concerned.
In the aftermath of the PP Judgment, NAB – which was pronounced dead by one of the honorable judges during proceedings of the Panama Papers case – has finally come alive. NAB has filed references against the ousted Prime Minister Nawaz Sharif, his Finance Minister and close relative, Ishaq Dar, his daughter, Maryam Nawaz, his son-in-law, Capt (Retd) Safdar and his two sons, Hassan and Hussain Nawaz Sharif. The references are pending before the Accountability Court in which bailable warrants have already been issued for the arrest of Ishaq Dar. Furthermore, NAB has frozen the assets of the Sharif family, directing that no sale or purchase of property is to take place till disposal of the NAB references.
According to news reports, NAB has also decided to file an appeal against the Hudaibiya Paper Mills case, which was dismissed by a Division Bench of the Lahore High Court in favor of the Sharif family. This case will also bring into focus the incumbent Chief Minister of Punjab, the younger brother of Nawaz Sharif, Shahbaz Sharif – who has avoided conspiracy thus far while hiding behind the shadow of his elder brother.
Kulsoom Nawaz, wife of Nawaz Sharif, is the only person in the Nawaz Sharif family who is free of NAB references. She has also recently been elected as a member of the National Assembly in a closely contested by-election held on the NA-120 seat, which stood vacated as a consequence of the disqualification of her husband, Nawaz Sharif. The political scenario appears to be heating up, with the Sharif family having fled abroad to avoid facing NAB references against them. However, cries of conspiracy are still ringing strong amongst Nawaz Sharif, his family and his PML-N faithfuls.
Throughout the proceedings of the PP Judgment, Nawaz Sharif, his family, and his political party, PML-N, have shown a complete disregard towards the sanctity of the courts and other regulatory institutions in Pakistan. Since the submission of the JIT Report on 10th July, 2017, the members of the ruling party, Pakistan Muslim League – Nawaz, have graced our television screens to criticise it every day (without fail). In amongst their usual histrionics, the underlying theme seemed to develop that Nawaz Sharif, and PML-N (by association), were somehow the victims of a blatant conspiracy which us, the gullible general public, could not figure out without their signposting.
Spokespeople of PML-N claimed that the JIT Report could not have been prepared in the two months or so that it took the JIT to submit it in the Supreme Court. They claimed that the abundant quantity of evidentiary documents attached to the JIT Report could not have been collected and collated within this timeframe without alleged prior preparation spanning well over a year. It was contended that as part of this conspiracy, the contents of the JIT Report (including evidentiary documents) were already available to the JIT upon its formation and that the decision to oust the then Prime Minister Nawaz Sharif was made well in advance to the institution of any legal proceedings.
No spokesperson of PML-N has put forward a shred of evidence to support these cries of conspiracy. The accused persons were given ample time and opportunity by both the Supreme Court and the JIT to submit their complete financial records to defeat claims of financial impropriety made against them. What they chose to do, instead, was to submit false evidence, doctored deeds and fake documents – all the while aggressively asking what they were accused of. In attempting to develop the political martyr narrative, Nawaz Sharif, his family and his party forgot to actually defend themselves properly. Cries of conspiracy cannot be expected to be believed by the general public when you yourself are guilty of the submission of doctored evidence to the JIT formed by the Supreme Court.
The absurdity of the claims of conspiracy is apparent even upon cursory examination. Let us envision this “conspiracy” scenario for a moment: “Someone” went through all the trouble of keeping meticulous records of the financial affairs of Nawaz Sharif and his family, waited all these years for an association of international journalists to hack the servers of a law firm in Panama and then leak that information, planned for the petitioners in the PP Case to approach the Supreme Court, accounted for the formation of the JIT by the Supreme Court and then planned for the final decision of the Supreme Court’s larger bench in the PP Case. This is a remarkable sequence of events that no one can have reasonable control over, quite simply due to the involvement of so many variables. It is just not possible. This claim of conspiracy seems more likely to be an instance of the “lion” who cried wolf.
Notwithstanding claims of conspiracy, Nawaz Sharif and his children should have been able to submit their complete financial records to the JIT and the Supreme Court. Failure to do so is not the JIT’s fault. The JIT cannot be blamed for taking an adverse view towards a failure to submit necessary documents (a serious shortcoming), or towards the submission of doctored evidence (the catalyst for several offences by itself). Considering the documents of the company Capital FZE, the evidence which ultimately led to the demise of the Government, omitting to submit such evidence does not reflect well on Nawaz Sharif and his children and they can have no complaints towards any adverse action taken on this basis.
Even though the PP Judgement raised some legal questions, which will hopefully be settled in a detailed judgement by the Supreme Court in the review petition against the PP Judgement, the response from Nawaz Sharif, his family and his loyal PML-N party members has been nothing short of disgraceful. The manner in which they took to the streets and daily talk shows on television to question the sanctity of the Supreme Court and to challenge its decision is a brazen contempt of court, which cannot be accepted in any civilised society.
by M. A Noon