Panama Papers Scandal: Disqualifying Nawaz Sharif for Deception is Fair

Hopefully these proceedings will set a robust process into motion and annihilate Pakistan’s corrupt dynastic politics for good …

Skeletons in the closet have led to the premature demise of Nawaz Sharif’s government yet again and his third premiership has ended in disgrace. But is history repeating itself? The question is especially interesting given that it was “strike three” for Nawaz Sharif. On the third and final occasion, dismissal from the solemn office of prime minister carries the further indignity of disqualification for life. Of course, questions also arise about the exact motivations of the judiciary in disqualifying a democratically elected leader, one who was close to setting a benchmark by becoming the first ever prime minister to complete a full five-year term during Pakistan’s seventy-year history. The ball must get rolling somewhere and the Supreme Court set a powerful precedent for a zero-tolerance approach to the use of deception in politics. However, it remains to be seen whether the high standard adopted by the Supreme Court will be applied across the entire spectrum of Pakistan’s dirty politics which is in dire need of cleansing.

It was an uphill struggle for Nawaz Sharif because he was practising deception in proceedings regulated by the very Supreme Court his PML-N party ransacked in 1997 when photographs of Muhammad Ali Jinnah were desecrated. One problem for the court is that it has many skeletons in its own closet because it has habitually upheld brutal dictatorships applying a perverse “doctrine of necessity”. Rightly or wrongly, the former three-time prime minister has become the second world leader to become the casualty of the Panama Papers, but at least Iceland’s former prime minister Sigmundur Davíð Gunnlaugsson had the dignity to resign promptly. Last year’s disclosures led to the pronouncement of the Panama Papers judgment which established the Joint Investigation Team. Memorably, Khosa J drew unflattering parallels with The Godfather and mocked Nawaz Sharif by recalling the maxim that “behind every great fortune there is a crime”.

The Supreme Court’s ruling of 28 July 2017 declared that having failed to disclose his un-withdrawn receivables constituting assets from Capital FZE Jebel Ali, UAE in his nomination papers filed for the General Elections held in 2013 in terms of section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 Nawaz Sharif was not honest in terms of section 99(f) of ROPA and article 62(1)(f) of the Constitution of Pakistan 1973 and therefore he fell to be disqualified from membership of Parliament.

Therefore, the court directed the Election Commission of Pakistan to issue a notification disqualifying Nawaz Sharif from being a member of Parliament with immediate effect. In other words, he ceased to be Pakistan’s prime minister. The court’s decision is fair, just and proportionate because the prime minister cannot enjoy and special status in litigation. Issues of deception, and indeed corruption, lie at the heart of the findings made by the Supreme Court and the JIT.

On any view, in exercising its original constitutional jurisdiction the Supreme Court is perfectly entitled to narrow down any issues of corruption. Indeed, it is entitled to not directly rule on any corruption issues if it was in a position to disqualify Nawaz Sharif for dishonesty or incomplete disclosure in his nomination papers. Even so, the ineluctable conclusion reached by the justices was that the Nawaz Sharif’s financial behaviour was not within the confines of mere inconsistency or innocent inaccuracy. Instead, he had behaved in a deceptive and inappropriate manner by deliberately withholding information and material facts and had transgressed the requirements of honesty and truthfulness imposed upon the prime minister by Pakistan’s Constitution. Since the deception ground was available, the court did not need to make a full excursion into the corrupt practices employed by Nawaz Sharif.

It was equally clear to the court that Nawaz Sharif’s disqualification was inevitable within the meaning of section 9(a)(v) of the National Accountability Bureau Ordinance 1999. The submission that the JIT had overstepped its remit by reinvestigating the quashed charges in Hudabiya Paper Mills Limited v Federation of Pakistan (PLD 2016 Lahore 667) was roundly rejected and the Supreme Court did not agree with the plea that a fresh investigation or inquiry was barred by the principle of double jeopardy. It was clear to the Supreme Court that a prima facie triable case under sections 9, 10 and 15 of the 1999 Ordinance was made out against Nawaz Sharif and his family members because of undisclosed assets and deception.

Of course, elements in the western media are portraying Nawaz Sharif’s dismissal as a double-edged sword for Pakistan, which, they claim, will be bad for the overall democratic process. But that only begs that question whether blatant cheating and lying by elected parliamentarians should be tolerated in Pakistan because the western press thinks it is better for us in the long run? I think not.

For example, Tariq Ali, a spineless champagne “socialist” who ran away from Pakistan long years ago to live in the safety of Britain, pontificates that Sharif is gone but Pakistan remains in a state of corruption. Essentially, such arguments are without any merit and are bound to fail because the accountability process must begin somewhere and no other place is better than the office of the prime minister.

A top-down approach is more advantageous for accountability mechanisms to bite in comparison to a bottom-up approach because the poor people of Pakistan – the masses who sweat, toil and bleed for the country – are not corrupt and are already paying the land mafia, the transport mafia, the water mafia and every other type of mafia possibly conceivable. Their suffering must end.

The fact that Nawaz Sharif failed to account for his financial affairs and mislead and deceived the Election Commission in his nomination papers is simply unforgivable. His unexplained wealth in London and elsewhere naturally arouse suspicions of corruption. Even if he is given the benefit of the doubt on corruption just for argument’s sake, to disqualify him from holding public office is fair, just and proportionate nonetheless because he used deception. His children behaved in an arrogant and rude manner and, like their father, they also deliberately and recklessly misled the JIT and the Supreme Court.

Our event in June 2016 concluded that the Panama Papers are “a blessing in disguise”. Apart from Nawaz Sharif, some 61 government officials and their family members’ names were under the media spotlight because of the damaging revelations. Prominent figures include the former Sudanese president, the emir of Qatar, the prime minister of Georgia, prime minister of Ukraine, officials of the Chinese government, the son of Malaysian prime minister and numerous others including former British prime minister David Cameron.

Nawaz Sharif was also treading a fine line because his reincarnation as Pakistan’s economic saviour after the rapacity of the five-year Zardari presidency was always exposed to the unconstitutionality of the National Reconciliation Ordinance 2007, an extremely controversial piece of dictatorial executive legislation – enacted by one General Musharraf – purporting to pardon acts of corruption, embezzlement, money laundering, murder, and terrorism between 1 January 1986 and 12 October 1999.

People supporting Nawaz Sharif, some claiming to be neutral legal experts, complain that he has been denied fair process and has not been provided sufficient procedural redress because his common law rights of testing evidence and cross-examination have been taken away from him. Yet on proper analysis, such complaints are frivolous and misconceived because proceedings pursuant to article 184(3) of Pakistan’s Constitution are essentially judicial review proceedings which can be decided purely on paper without any oral evidence being heard. The scope of the review power is deliberately wide so as to be able to capture an assortment of issues to rule on.

In any event, it is probably the case that Nawaz Sharif and his family actually prefer not to be cross-examined or be judicially interrogated and humiliated in the course of public law proceedings arising out of allegations of corruption. The court was particularly irritated with Maryam Nawaz because of her deception and remarked:

… she is liable to be proceeded against for forgery and using forged documents; that use of Calibri Font, which became commercially available in 2007, in the preparation of the trust deed in February 2006 is another circumstance leading to the inference that it was forged and fabricated …

During his post-disqualification press conference, Nawaz Sharif protested and claimed that he is innocent. He also boasted that president Xi of China gave him CPEC as a present. Nawaz Sharif should note that the world is littered with grandiose Chinese development projects which are in fact white elephants and that it will ultimately be for Pakistani taxpayers to foot the bill for the CPEC project irrespective of whether it is successful or not.

Admittedly, it is an oddity that five judges handed down the judgment on Nawaz Sharif’s disqualification whereas only three of them heard the matter. But this merely a manifestation of what the legendary leader Fatehyab Ali Khan termed Pakistan’s “constitutional anomalies”. In any event, the same five-member bench sat over the judgment of April 2017 that created the JIT so any perceived unfairness caused by inconsistency of numbers is well outside the realm of reasonableness and we are clearly not in any such territory. Not finding against Nawaz Sharif would inevitably fragment the rule of law and destroy any remaining prospects of real democracy in the future.

Any novelty exposed by the fact that a justice of the Supreme Court shall monitor further developments in accountability proceedings is understandable because without such superintendence proper progress cannot be made and the Pakistani public would prefer to have speedy justice rather than protracted delay to suit the corrupt, deceptive and evil politicians who consider themselves to be above the law. Nawaz did not learn from his mistakes. He preferred to lie and be dishonest. Surely there must be consequences for such behaviour given that crimes of dishonesty are punishable under the criminal law.

Constitutional change in Pakistan has been always been a painful process. But politics can be a wondrous thing even in Pakistan and Nawaz Sharif’s disqualification was a painless affair. Had the court given him a clean bill of health despite his deceptive behaviour, the country would have become lost in a morass of lies. We can only hope that the outcome of these proceedings will change Pakistan’s political culture and introduce fresh and honest faces into public life so the country can progress and become prosperous. It would have been a huge blow to the rule of law if Nawaz Sharif had emerged unscathed from the outcome of the legal process.

It is possible to attack the opacity of the Supreme Court’s judicial process because members of the public cannot directly access its proceedings in an audiovisual online format – as in the proceedings of the American and British Supreme Courts – but that is something the court can develop in future times so as to enhance its own transparency. It goes without saying that the court’s judges must use their powers reasonably only to do justice and under no circumstances should they resort to settling political scores and old enmities.

The disclosures in the Panama Papers prompted British authorities to clean up London’s property market to let it be known that “there is no home for the corrupt in Britain”. Transparency International and Global Witness are demanding that UK authorities must immediately evaluate the Sharif family’s ownership of various luxury properties in London with a view to seizing them if they have in fact been purchased with the proceeds of crime. We can only hope that international authorities will align their tactics and coordinate action to bring the world’s corrupt wealthy elites to justice.

This post has been contributed by the Editor who is BA, MSc, MA, LLB (Hons), BVC, LLM, Barrister-at-Law (Middle Temple) and is an Advocate of the High Court of Sindh. His views are not shared by PIIA which is a neutral entity. 

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Filed under Accountability, Constitution 1973, Corruption, Courts, CPEC, Discussion, Human Rights, Mossack Fonseca, Pakistan Horizon, Panama Papers, PIIA, Politics

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