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Posted at: Apr 21, 2017, 12:59 AM; last updated: Apr 21, 2017, 12:59 AM (IST)

Nawaz in the dock

Vivek Katju
A 3-2 judgment gives a breather to Pak PM
Nawaz in the dock
Sigh of relief: A JIT will further probe the allegations against Nawaz.
AFIVE-judge Pakistan Supreme Court bench in a 3-2 judgment has held that Mian Nawaz Sharif, for the present, cannot be considered ineligible to hold the office of Prime Minister. The court was dealing with petitions filed by Pakistan Tehreek-e-Insaaf (PTI) chairman Imran Khan and some other opposition leaders on the basis of disclosures against the Sharif family in the Panama Papers. Three judges ordered the establishment of a joint investigation team (JIT) to probe alleged material relating to the Sharifs illegally transferring funds out of Pakistan, owning off-shore companies and properties. However, two judges held Nawaz Sharif guilty of being dishonest and opined that he should step down. 

The point at issue was Sharif’s conduct in the light of the provisions of Articles 62 and 63 of the Pakistan constitution. These articles lay down qualifications and disqualifications for members of Parliament. Of specific relevance in this case was the requirement that a member be ‘sagacious, righteous and non-profligate, honest and ameen, there being no declaration to the contrary by a court of law’. Sharif’s actions were to be judged on the anvil of this onerous criterion.

The JIT will act under the court’s supervision. It will be chaired by a Director-General level officer of Pakistan’s Federal Investigative Agency (FIA) and will have officers of the National Accountability Bureau, State Bank of Pakistan, the Securities and Exchange Commission, Military Intelligence and the ISI as members. The JIT is to be constituted within a week and will submit its report to the Supreme Court within 60 days. In a sense, the three-judge majority has passed the buck to bureaucrats and intelligence officials to assess what veteran Pakistani journalist IA Rehman summed up in December 2016 as the basis on which the court would test Sharif’s conduct: ‘Did the money go out of Pakistan and was the prime minister a party to it? Has the prime minister filed a correct statement of his assets?’

The judgment does not end the turbulence unleashed in Pakistan by the Panama Papers publication last year. Sharif has got a reprieve but his supporters’ jubilation may be premature, for the JIT and court proceedings before a fresh bench will be politically draining. Appearances of members of the Sharif family before the JIT will be embarrassing as will the comments, as the 540-page judgment is studied; especially the observations of the two who formed the minority may be scathing against the PM. For Imran Khan and the opposition, the judgment is an obvious disappointment, for it does not unseat the PM but it gives them enough to continue to have a go at Sharif. It will therefore be a hot and difficult summer for Pakistan as the focus will remain on Sharif’s alleged corruption.

The manner in which the Panama Papers crisis unfolded last year shows the fractures in Pakistan’s polity, the role of the army and a cautious assertiveness of the judiciary, or at least some of its members. The Panama Papers released on April 3, 2016, revealed that the Sharifs — Pakistan’s most powerful political family— owned through different legal stratagems eight off-shore companies in tax havens. Specifically the country’s attention became riveted to flats in London’s upscale Park Lane whose ownership was attributed to his daughter Maryam, and sons Hassan and Hussain. The opposition, especially Imran Khan, sensing an opportunity to wound, if not deliver a mortal blow to Sharif, demanded that the PM should subject his family and himself to effective investigation and scrutiny.

There is little doubt that Sharif was shaken to the core by these allegations. He addressed the country twice on national television and once addressed Parliament to refute the allegations of wrong doing against his family. He also accepted immediately to appoint a commission of inquiry under a retired Supreme Court judge to examine the charges against his family. Later, under pressure, he wrote to the Pakistan Chief Justice to appoint an inquiry commission for the purpose. However, the Chief Justice refused to do so stating that the inquiry law was toothless.

 As the then army chief Gen Raheel Sharif mounted pressure on the ground that this political turbulence  impacted on national security, Nawaz Sharif accepted a joint government and opposition committee to reach an agreement on  common terms of reference for the inquiry committee. The two sides could not work this out and Imran Khan decided to take the issue to the streets. The country was once threatened with the prospect of a lock-down of its capital. 

At this stage, six months after the Panama Leaks had raised a political storm, a reluctant Supreme Court agreed to accept the petition filed by Imran Khan and others challenging Sharif’s continuance as PM and his membership of Parliament on the ground that he stood in violation of Articles 62 and 63 of Pakistan’s constitution. 

There is little doubt that the Sharifs exercise virtually uncontested sway over the politics of the Punjab and through it over that of Pakistan. Their party the PML (N) holds 182 out of 341 seats of the National Assembly. With all the street power that he can muster, Imran Khan’s electoral political reach is confined to the Pathan-dominated Khyber-Pakhtoonkhwa province. He has been the army’s cats-paw in the past and may be so in the future but short of a dramatic unforeseen development he cannot politically match the Sharifs where it matters — the Punjab. The Bhuttos are currently relegated to the Sindh and are not an effective opposition to the Sharifs. Hence, the opposition’s great reliance on the Panama case and it is here that their hopes will continue to rest. 

The inclusion of MI and ISI officers in the JIT shows, once again, the position of the army in Pakistani public life. While the text of the judgment may provide reasons for their inclusion prima facie, it is extraordinary that in a probe of this nature defence service intelligence agencies should be involved. Given the iron-clad nature of army discipline is it conceivable that the Supreme Court can guarantee that they will not take cue from the army hierarchy? In any event their inclusion strengthens the army’s image. 

A last word. Justice Asif Saeed Khosa, who headed the five-judge bench, remarked at the conclusion of the hearing in February, ‘We will decide the case only by the law; such that the people will say 20 years down the line that this judgment was made by the book’. He was in a minority. A split judgment leaves confusion to persist as much on the ‘law’ and the ‘book’ as on Sharif’s future, for the charges of corruption remain.

The writer is a former Secretary, Ministry of External Affairs


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