Panamaleaks: to be continued | Najam Sethi

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The Supreme Court bench hearing the Panamaleaks case has finally announced a 3/2 decision after two months of deliberations over the matter of the “money trail” that led to the purchase by the Sharif family of various properties in London in the 1990s. Its conclusion: further investigations are needed before arriving at definite decisions. The voluminous and time consuming judgment suggests that a consensus eluded the bench, with some judges inclined to clutch at the spirit of the law and others still reluctant to depart from the letter of the constitution.

The judgment has not disqualified PM Nawaz Sharif as a Member of Parliament and Prime Minister of Pakistan. Instead, it has decreed the formation of a Joint Investigation Team comprising representatives of Military Intelligence and Inter Services Intelligence, plus National Accountability Bureau, Federal Investigation Agency, State Bank of Pakistan and Securities and Exchange Commission of Pakistan, to investigate (within 60 days) whether and how the Prime Minister and his two sons Hassan and Hussain acquired the money with which they bought expensive properties in London in the 1990-2005 period. The Chief Justice of Pakistan is now expected to constitute a separate bench to peruse the JIT report in July and determine the culpability of the accused. In other words, Nawaz Sharif is not yet off the hook even though the PMLN is crowing about a victory.

The opposition led by the PTI is focusing on some other salient points. Two judges have declared Mr Sharif guilty as charged while three judges think the evidence is still unconvincing in this regard. But the three judges have not ordered the PM to “step aside” while the JIT conducts its investigation. This suggests that these judges were cognizant of the dangers of setting such a legal precedent that would spell instability in the future. But this has also provoked the opposition to clutch at notions of morality and transparency and demand that the prime minister do so in order not to erode the impartiality of the JIT report. Indeed, we should expect this theme to be a central plank in the opposition’s agitation for the next two months because the heads of the SECP, NAB, FIA and SBP are appointed by the PM and questions have already been raised by the dissenting judges about the professional competence of both NAB and FIA and the impartiality of their heads.

The critical dimension of the JIT relates to its TORs. It is tasked “to collect evidence to prove that Mr Sharif and his dependents or ‘benamidars’ own, possesses or have acquired assets or any other interest therein disproportionate to his known wealth…” In other words, it is up to the JIT to collect the evidence and provide answers to the following questions: How did Gulf Steel Mills come into being? What led to its sale? What happened to its liabilities? Where did its sale proceeds end up? How did they reach Jeddah, Qatar and the UK? Whether Hassan and Hussain at that tender age had the means in the early 1990s to possess and purchase the flats; whether the sudden appearance of the letters of Hamad bin Jassem Jaber Al Thani is myth or reality. How did the Bearer Certificates crystalize into apartments? Who is the real beneficial owner of Nielson Enterprises Ltd and Hill Metal establishment? Where did the money for Flagship Investments Ltd and other companies set up by one of the sons come from? Where did the huge sums of money gifted by one of the sons to Nawaz Sharif come from? And so on.

This is going to be a tough act to follow. The members of the JIT are not exactly renowned for being forensic sleuths in money laundering cases with trails in foreign lands, especially in the short time given to them.

The most astonishing part of the judgment is Justice Asif Saeed Khosa’s dissenting opinion on the disqualification of the PM on the yardstick of Article 62 (f) for not coming clean on the money trail. Justice Khosa, it may be recalled, had earlier frowned on attempts to clutch at Articles 62 and 63 to disqualify any member of parliament. But this is offset by Justice Ijaz Afzal (who wrote the majority judgment) who argues that the Supreme Court cannot make declarations directly on the basis of Articles 62/63 and must refer these to the Election Commission if the question so arises.

Nawaz Sharif should be worried about his indictment at the hands of two senior judges. This reflects on the intensity of popular pressure on the judiciary. Equally, his sons can’t be too comfortable with the idea of appearing before the JIT to answer searching questions. But all three gentlemen must appear before the JIT and give due respect to it as a surrogate for the judiciary. Everything will now depend on the consistency and authenticity of their depositions as much as on the professional ability of the JIT to unearth any alternate and contending facts of the case.