The verdict & unseen hand of Generals

Vivek Katju

AS Pakistan Prime Minister Nawaz Sharif resigned on July 28 after the Supreme Court decision in the Panama Papers case, memories, two decades old, of his success in hounding out Sajjad Ali Shah from the office of Chief Justice of Pakistan would have come back. He may well have wondered what the world had come to when he had no alternative but bow to a decision based on one technical ground taken through a controversial judicial procedure. 

Back in 1997, Nawaz Sharif exercised such control over the country that for the "insult" of the Chief Justice summoning him in person to answer charges of contempt of court he had allowed zealous supporters to storm its premises, split the Bench, which by majority declared that Shah's appointment, by then three years old, as illegal ab initio and sent their Chief packing.  All through, the army Chief Ge. Jehangir Karamat had not stirred. But that was then. This time the bisaat was totally different, except in one aspect: if Sajjad Ali Shah was a "political" judge, the whiff of politics comes from the present judgment too. 

The Panama Papers became public in April 2016. They revealed that Nawaz Sharif's children — daughter Maryam who is being groomed for politics and businessmen sons Hussain and Hassan who live outside Pakistan — owned off- shore companies and lucrative properties abroad. These included four apartments in London's posh Park Lane. For many in Pakistan, these revelations only established what was suspected all along, that Nawaz Sharif had sent abroad his ill-gotten wealth acquired from business and misuse of office. The Panama Papers provided the opposition, especially Pakistan Tehreek-e-Insaf (PTI) Chairman Imran Khan, an opportunity to corner Nawaz Sharif. Between April and August 2016, Nawaz Sharif's attempts to appoint commissions to investigate these charges failed. The government and the opposition could not agree on the terms of reference of a commission and Pakistan's Chief Justice also refused to nominate judges to any commission which in law would be "toothless". Finally, Imran Khan filed a case seeking  the Supreme Court to declare Nawaz Sharif unfit to be a Member of the National Assembly ( hence, Prime Minister) as he did not meet the tests prescribed in Articles 62 and 63 of the constitution. Most constitutions and peoples' representation laws prescribe conditions relating to nationality, age, residence, health, absence of criminal convictions by courts, and in some cases that a person should not be in debt. Seldom do they venture into the domain of character. This was also the case with the Pakistan constitution till General Zia-ul-Haq amended Article 62 and introduced a character test. Art. 62 (1) (f) now requires Members of Parliament to be, "sagacious, righteous, non-profligate, honest and ameen". Pakistan's superior courts have commented many times on the difficulties in legally applying these ideals of conduct to concrete cases. However, as these qualities of leadership are rooted in the Islamic concept of righteous rulers no political party has taken the initiative to amend it. Gradually case law seems to be developing to apply them narrowly such as in cases of wrong declaration on nomination forms for elections. The courts refrain from entering into an MP's personal conduct.

Imran Khan asserted that the Panama Papers revealed that Nawaz Sharif owned properties abroad, including the Park Lane flats, and been dishonest to not disclose them in his nomination form. He further alleged that in his speeches to the nation and parliament after the Panama Leaks, he had prevaricated and contradicted himself, thus falling short of the qualities mentioned in Art. 62. The Court heard the matter for over two months. It decided, as noted by Justice Khosa who led the five-judge bench, "to focus mainly, but not exclusively, on the properties relevant to Respondent No.1 (Nawaz Sharif) and his children which were revealed in the Panama Papers". By a majority of 3-2, it decided that the Panama Papers did not conclusively establish that Nawaz Sharif was the owner of these properties and therefore a Supreme Court monitored probe was required through a Joint Investigation Team (JIT) to establish facts. 

Surprisingly, the JIT included ISI and MI officers thereby involving the army which assured the nation that it will fulfil the mandate conferred by the Court. Though the majority and the dissenting judges agreed that Nawaz Sharif and his children's claims were contradictory and deliberately confusing and incomplete,the two dissenting judges found these sufficient to disqualify him the majority three did not reach this conclusion. Strangely, the minority two inferred that while a person could  be sent to jail after establishing his guilt through a regular trial, disqualification in terms of Art 62 could be done through a lower standard. The Supreme Court Chief Justice appointed a bench of three judges who had given the majority judgement to monitor the JIT probe. The JIT gave its report on July 10 and the three-judge bench heard arguments about its tenability for a week. In violation of procedural norms, the original five-judge bench met to pronounce the judgment. The dissenting two thus had no opportunity to hear arguments on the report and yet they considered it fit as obviously did the Chief Justice that in a matter relating to the Prime Minister standard procedure could be short-circuited. 

Now comes the strangest part. On the issues in the Panama Papers on which the JIT extensively reported, the majority three did not obviously concur with the dissenting two and did not find the report sufficient to disqualify Nawaz Sharif.  However, as the JIT found the family guilty of misrepresentation and fabricating documents, the five unanimously ordered the National Accountability Bureau to launch corruption cases against all. In a move which can only be called dubious, the five took note of Nawaz Sharif's chairmanship of FZE Capital, his son's company in Dubai (which did not figure in the Panama Papers)  and held that while he did not draw any emoluments they were nevertheless his assets. This may be technically so. They held that as he had not declared them in his nomination form in the 2013 election, he was dishonest and fell short of the requirements of Art 62. No real opportunity was given to him to defend himself. The judges clearly forgot that justice has to be manifestly done. It brings no credit to the Supreme Court and can only spread speculation of bias and the unseen hand of the Generals. 

The writer is a former Secretary, Ministry of External Affairs.