Panama leaks lead another empire to fall, and this time happens in Pakistan as Nawaz Sharif, head of a mainstream [ruling] political party, Pakistan Muslim League (N) and country’s third time prime minister, stands disqualified from holding public offices by the country’s apex court, the Supreme Court of Pakistan, in a unanimous verdict in Panama case.
On Friday, July 28th, 2017 – Judges entered the court room no. 1, when the clock was ticking 12:03 pm, all in the court room rises; judges get settled to announce a long awaited decision. Head of five members larger bench, Justice Asif Saeed Khosa first apologizes for the audience for bench’s late arrival and then announced the sequence of final proceedings.
In a set schedule, initially the head of three member implementation bench, Justice Ejaz Afzal Khan, has started reading finding in the light of Joint investigation report (JIT) while after that head of the Panama case bench Justice Asif Saeed Khosa, announced the final order of the court, [placed the fate of Sharif family].
Court’s final order:
The Apex court of Pakistan, The Supreme Court has announced the final verdict and said,
“The National Accountability Bureau (NAB) shall within six (06) 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”:-
1. 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;
2. b) Reference against respondents No. 1, 7 and 8 regarding Azizia Steel Company and Hill Metal Establishment, as indicated in the main judgment;
3. 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;
4. 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;
5. e) NAB shall also include in the proceedings all other persons including Sheikh Saeed, Musa Ghani, Kashif Masood Qazi, Javaid Kiyani and Saeed Ahmed, who have any direct or indirect nexus or connection with the actions of respondents No. 1, 6, 7, 8 and 10 leading to acquisition of assets and funds beyond their known sources of income;
6. f) NAB may file supplementary Reference(s) if and when any other asset, which is not prima facie reasonably accounted for, is discovered;
7. g) The Accountability Court shall proceed with and decide the aforesaid References within a period of six months from the date of filing such References; and
8. h) In case the Accountability Court finds any deed, document or affidavit filed by or on behalf of the respondent(s) or any other person(s) to be fake, false, forged or fabricated, it shall take appropriate action against the concerned person in accordance with law.
9. It is hereby 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 and therefore he is disqualified to be a Member of the Majlis-e-Shoora (Parliament).
10. The Election Commission of Pakistan shall issue a notification disqualifying respondent No. 1 Mian Muhammad Nawaz Sharif from being a Member of the Majlis-e-Shoora (Parliament) with immediate effect, whereafter he shall cease to be the Prime Minister of Pakistan;
11. The President of the Islamic Republic of Pakistan is required to take all necessary steps under the Constitution to ensure the continuation of the democratic process.
12. The Hon’ble Chief Justice of Pakistan is requested to nominate a Hon’ble Judge of this Court to supervise and monitor implementation of this judgment in letter and spirit and oversee the proceedings conducted by NAB and the Accountability Court in the above-mentioned matters.
13. This Court comments and appreciates the hard work and efforts made by Members of the JIT and their support and ancillary staff in preparing and filing a comprehensive and detailed Report as per our orders. Their tenure of service shall be safeguarded and protected and no adverse action of any nature including transfer and posting shall be taken against them without informing the monitoring Judge of this Court nominated by the Hon’ble Chief Justice of Pakistan.
It’s no doubt a historic decision as it was unanimous, first ever against Sharif family, according to the Constitution and legal framework, the court has given 10 months to Sharif family to declare the money trail, documents, and any other evidence in support of their legal arguments but Sharif family failed in doing so.
Meanwhile, Sharif family particularly Nawaz Sharif set a brilliant example by at least initially accepting the verdict and compelled the party to also respect it, too. Soon after the judgment, Prime Minister step-down while following the directives of the Supreme Court, the Election Commission of Pakistan (ECP) issued a notification to de-notify Muhammad Nawaz Sharif as member National Assembly of Pakistan from Constituency No.NA-120 Lahore-III with immediate effect.
As the premier of the country de-notified, cabinet stands dissolved and apparently, the process for the new leader of the house starts. Though opposition parties especially the leading petitioner in Panama case, Pakistan Tehreek-e-Insaaf (PTI) is in celebration mode but many in legal fraternity and also ruling PML-N criticizing the judgment on various grounds.
Why five member bench again?
Legal experts believe that five-member Panama bench has already delivered a split, 3:2 & 540 pages verdict to initiate a fresh interrogation of PM Nawaz Sharif and family and ordered formation of a Joint Investigation Team (JIT) to further probe into alleged offshore assets of Premier (Nawaz Sharif) and his family, within 60 days’ time, submission of progress report every fortnightly and a final report at the end.
According to April 20th, 2017 judgment, Justice Asif Saeed Khousa, and Justice Gulzar Ahmed have dissenting notes with a strong opinion that “PM stands disqualified” but three judges, Justice Ejaz Afzal Khan, Justice Sheikh Azmat Saeed and Justice Ijaz ul Ahsan, given a majority judgment, which prevailed. After that, a special implementation bench constituted to oversee the JIT progress and pass an appropriate order after due submission of final report.
Legal wizards are of the opinion that after JIT report submitted; most probably three-member bench has to announce the verdict and not the five-member bench. On the contrary, the majority believes that three-member bench was only an implementation bench and 20th April judgment was interim in a sense, that two judges have decided and other three consented to get clearer about facts through further investigation. Now, after JIT report submission, three-member bench placed their final findings, and the five-members larger bench has announced its final order on July 28th, 2017.
But, another factor suggests that – five-member bench can announce the formation of commission or JIT on April 20th, 2017 [as done] but rather forming a separate three-member implementation bench, the same five-member bench has to seek submission of JIT/Commission final report, and declare the final verdict. In that case, the verdict would be one, decisive and a decision of five-member larger bench.
Some law researchers believe that decision of disqualification on the basis of an “Iqama” could be a weak ground, keeping the statement of Sharif family that these facts were already declared in ECP. It was the JIT report, in which, evidence directly suggest that ousted Premier was directly affiliated with United Arab Emirates (UAE) Jebel Ali Free Zone Authority (Jafza), as chairman with salary of 10,000 dirhams between Aug 7, 2006, and April 20, 2014, till nearly a year after assuming office but did not declare this in his nomination papers.
According to the Oxford dictionary, the definition of “Asset” means, “An item of property owned by a person or company, regarded as having value and available to meet debts, commitments, or legacies”.
But, some of the experts rely on that if Nawaz Sharif has “receivables” in his account, which is “un-withdrawn”, how these could be considered as “assets”. According to them, the asset could only mean, a thing in [active] possession, a matter based on assumptions, especially when it’s related to a pivotal matter of country’s leading politician, it needs extreme care.
At the same time, many believe and especially “the opposition”, that not declaring fact [about FZE, Jafza] in nomination papers, for the general elections 2013, could be a matter of concern. At the same, PML-N leadership in denial mode and continue propagating that their party head has already submitted these facts to ECP and all about Capital FZE already declared in nomination papers.
Meanwhile, another aspect of apex court judgment that Nawaz Sharif was disqualified on the basis of article 62(1) (f) of the Constitution along with section 99(f) and 12(2)(f) of the Representation of People’s Act. (ROPA) 1976.
Analysts argue that article 62 (1) (f) is wide open with no specific time bar and disqualification time is not even specified in the court’s order, that’s why it’s considered as a lifetime. Some people compare Nawaz Sharif disqualification with Yousaf Raza Gillani’s case but that was on the basis of 63(1)(g) with the term specified as five years and on charges of contempt of court.
Senior lawyer and former president Supreme Court Bar Association (SCBA), Barrister Ali Zafar has the view that Nawaz Sharif disqualification is for a lifetime. “As the article 62(1)(f) is open ended, so the disqualification under such circumstances is for life”, he adds.
Still, legal experts are divided at a point that a convicted murderer can become Member of Parliament after five years bar but a person found guilty of misdeclaration is disqualified for life.
Ruling party, PML-N says Nawaz Sharif’s ouster was not based on Panama Papers and expressed serious reservations over the disqualification. “This decision is not acceptable and we will file a review petition in court,” said Saad Rafique, a mainstream PML-N leader.
Why NAB again?
Supreme court has ordered National Accountability Bureau (NAB) to file references against Nawaz Sharif and his family, while JIT in its 10 volumes, already submitted that NAB has done nothing on a cache of references since 1999.
Many states that if NAB has done nothing on cases against Sharif family in 18 years, how can it be possible that they do it seriously, effective and sincerely this time in 6 weeks although the scenario is a bit changed.
Secondly thought is that apex court judges, during the hearing and in their April 20th, 2017 judgment, shown severe reservations, given observations and shown displeasure on NAB’s hierarchy and for its deliberate inactions in matters pertaining to elite’s corruption particularly in Sharif family cases.
Lawyers also worried that PML-N still a ruling party, they can influence NAB and could deliberately delay references in accountability courts, though a time-frame was given and a sitting Supreme Court Judge will monitor the NAB act and accountability court’s progress into the field references.
While beside historic July 28th, 2017 judgment – NAB has also decided to file an appeal in country’s apex court against 2014, Lahore High Court verdict that quashed the Hudaibiya Paper Mills reference against the Sharif family. As, Qamar Zaman Chaudhry is going to retire in October this year and a new chairman will take charge in due course, so reservations on hierarchy will also get mild.
Panama case judgment is interesting but sending references to NAB or accountability courts is surprising as the court has a lot of matter to decide corruption, money-laundering and off-shore matters after JIT report while Ishaq Dar’s case again taken in a polite manner. It’s also an interesting fact that majority of cases were going on in NAB since 1999 but all sealed because of political influence including London flats, Hudaibiya paper mills matter etc. Supreme Court has started Panama hearings back on 20th October 2016, and after a hectic exercise of nine months and 8 days (approximately), accept disqualification of Nawaz Sharif, the ball is again in NAB’s court – means cases [against Sharif’s] started from “NAB”, ended-up in “NAB”?
DISCLAIMER: The views and opinions expressed in this article are solely those of the author and do not necessarily reflect the official policy and position of Regional Rapport.