By Rana Banerji*
The long awaited Panama Papers verdict on 20 April, 2017, by the five-judge bench of Pakistan’s Supreme Court has stopped short of disqualifying Prime Minister Nawaz Sharif and given him a temporary reprieve by ordering investigation by a Joint Investigation Team (JIT) of officials, including those from the Inter-Services Intelligence (ISI) and Military Intelligence (MI), within 60 days, under Court supervision.
The 3-2 split verdict suggests that while there may have been enough substance to justify that Sharif may not have been either `sadiq’ (honest) or `ameen’ (trustworthy), thus meriting disqualification under Articles 62 and 63 of their Constitution, this power could not be exercised by the Supreme Court in its `original jurisdiction’ powers under Art 184(3), as it did not relate to a question of public importance related to a Fundamental Right. It purports though, that there were enough grounds to believe that the prime minister and his family members had obfuscated the money trail about the off-shore accounts and especially, the transaction pertaining to purchase of the Mayfair flats in London.
The JIT has been tasked to work on a `thirteen point’ list of items pertaining to the money trail covering the setting up of the Gulf Steel Mill in Dubai; subsequent sales in Saudi Arabia and Qatar; and details of purchase transactions of the Mayfair flats. The judgment virtually dismisses the veracity of the Qatari Sheikh, Jabbar al Thani’s bailout letters about the money transactions. It also opens up the possibilities of re-opening of the Hudaibiya Paper Mills money laundering investigations of the early 1990s by either the Federal Investigation Authority (FIA) or the National Accountability Bureau (NAB). The role of NAB Chief Qamar Zaman in not challenging the September 2014 Lahore High Court verdict exonerating the Sharifs in the Hudaibiya case has been castigated. The JIT’s would now be `a criminal investigation’, which would have to be placed before a fresh bench of the Supreme Court to finally decide on the matter.
Ironically enough, in the convoluted social milieu of denial that prevails in Pakistan, the judgment was `celebrated’ with distribution of sweets and `bhangras’ by both the plaintiffs and the respondents. The Opposition, led by the leader of Pakistan Tehreek-e-Insaaf (PTI), Imran Khan, hailed the landmark verdict and called for the prime minister’s resignation. Pakistan’s former President and Pakistan Peoples Party’s (PPP) Asif Zardari criticised the majority judgment while hailing the dissenting notes recorded by the two senior judges, Justices Asif Saeed Khosa and Gulzar Ahmed, both of whom could ascend to the post of Chief Justice after the incumbent’s term ends in January, 2019.
Khosa in particular, has been very caustic in commenting on Nawaz Sharif’s lack of probity, belying any familial loyalty or leanings toward views of his father-in-law, late Chief Justice Nasim Hassan Shah, who restored Nawaz Sharif to power briefly in June 1993 – after Ghulam Ishaq Khan had dismissed him as prime minister – using powers under the now abolished Article 58(2)(b).
Ruling party sources have chosen to ignore the `Damocles’ sword’ that still hangs on their leader. Pakistan Muslim League (Nawaz) (PML(N)) supporters take succor from the fact that four of the JIT’s six members would be appointees of the civilian leadership. The JIT itself may effectively lead to a dead end. It is unlikely that a JIT comprising government officers would be able to press the ruling family to retrieve official documents from the British Virgin Islands (BVI) registrar of companies or the BVI Financial Services Commission (BVIFSC) regarding beneficial ownership of all offshore companies linked to them, or be able to prove that these were transferred in their name only in 2006 and that too from the Qatari royal family. Obtaining unavoidable documentary evidences from offshore jurisdictions without proper information sharing agreements would be difficult. Without these documents from offshore jurisdictions, complicated riddles regarding beneficial ownership of offshore companies and the year of their transfer in the name of the Sharifs would not be resolved.
Views of the legal fraternity in Pakistan have been mixed. Some luminaries have deemed the verdict as appropriate though definitely not bereft of political overtones. Noted Human Rights activist and lawyer Asma Jehangir felt `confused’ over the import of the judgment. The PPP’s Aitzaz Ahsan suspected that the formation of the JIT could enable the Sharifs to eventually wriggle out from the clutches of law.
What is concerning about the composition of the JIT is the inclusion of two Military Intelligence representatives. This sends a signal about the judiciary’s lack of institutional trust in civilian institutions or even about its own role in the past, acquiescing in the `doctrine of necessity’ to validate repeated military takeovers. It may be quite another matter whether the Army leadership under Gen Qamar Javed Bajwa would like to involve itself in this probe. If past precedents are to be relied upon, there could be no guarantee of soft peddling merely because Nawaz selected Bajwa to head the Army despite his low position on the eligible Generals’ seniority list. It goes without saying that during this interregnum, Nawaz Sharif would hardly be able to undertake any India friendly initiatives on matters of security policy.
The judgment reveals yet again how long-standing political families in Pakistan have been able to use the system to enhance their personal wealth. Credit for pushing that simple idea, both intuitively and with circumstantial evidence to support it all the way to the Supreme Court, and against a serving prime minister, must go to Imran Khan and his PTI. Whether this can be converted to political benefit in the 2018 polls is too early to predict and would depend on how effectively he can contain or dismantle the grip the Sharifs have so assiduously built up over the biradari (clan) networks in a still predominantly feudal rural Punjab.
* Rana Banerji
Member, Governing Council, IPCS, & former Special Secretary, Cabinet Secretariat, Government of India