Courting another political verdict, Husain Haqqani
APRIL
22, 2017 00:02 IST
Nawaz Sharif gets a
breather from the Pakistan Supreme Court, but he’s been put on notice
Pakistan’s
Supreme Court is an arena for politics, not an avenue for resolution of legal
disputes. Unlike other countries where the apex court serves as the court of
last appeal, Pakistan’s Supreme Court often entertains direct applications from
political actors and generates high-profile media noise. In that tradition its
judgment in the so-called Panama Papers case is a classic political
balancing act. It raises questions about Prime Minister Nawaz Sharif’s property
in London, but does not remove him from office.
Opposition
politician Imran Khan, currently a favourite of Pakistan’s establishment,
initiated the case after Mr. Sharif’s name appeared in leaked documents about
owners of offshore companies worldwide. The documents indicated that the Sharif
family had borrowed money against four flats they own in London’s posh Mayfair
district.
Show them the money
Having
an offshore account is not in itself a violation of Pakistani law, but
transferring money from Pakistan illegally is. Hence the case decided on
Thursday revolved around the provenance of the money with which the Sharifs
became owners of the property in London. In hearings that began in January, the
petitioners insisted that the Sharif family’s ownership of this particular
property could not have been possible without their possession of undeclared
wealth or illegal transfers of money from Pakistan.
Instead
of insisting on the time-honoured principle that accusers must prove their
allegation beyond a shadow of a doubt and that investigations must precede
judicial hearings, the Supreme Court acted politically. It asked the Sharifs to
explain the source of money used to buy property abroad, forcing the Sharif
family’s lawyers to offer various (sometimes contradictory) explanations at
sensational hearings.
One
of these explanations comprised a letter from a member of the Qatari royal
family who said that he had transferred $8 million to the Sharif family as
return on investments made in cash by the Prime Minister’s deceased father,
Mian Muhammad Sharif, in the Qatari family’s real estate business in 1980.
The
Qatar letter did not settle the matter because the Sharif family members had,
at different times, given different explanations for the source of their funds.
Moreover, the timelines of the acquisition of the London properties, the
formation of the offshore company that was used to buy them and the apparent cash
dealings in Qatar did not always align. In any case, a Qatari royal might be
willing to send a letter for his friends, the Sharifs, but could not be
expected to testify in person in Pakistan and submit himself to
cross-examination, something that would be needed if the case ever went to
proper trial.
The
Supreme Court’s final verdict was split 3-2 among the five-judge bench, with
two ruling that Prime Minister Sharif should be disqualified from holding
office for failing to explain the source of money for his property. The
majority said there was insufficient evidence for such a drastic step and
instead announced the formation of a Joint Investigation Team (JIT) comprising
five members.
These
would include appointees from the Federal Investigation Agency, the National
Accountability Bureau, the State Bank of Pakistan, the Securities &
Exchange Commission of Pakistan and one representative each from the
Inter-Services Intelligence (ISI) and Military Intelligence (MI).
The fallout
The
Prime Minister’s side breathed a sigh of relief that the court did not
disqualify him from holding office, a decision it has given in the past for the
removal of elected civilian Prime Ministers. Imran Khan, who wanted
disqualification, declared victory even with the JIT’s creation. He and other
opponents of the government are hoping that Nawaz Sharif will now bleed
politically from the thousand cuts that are likely to be inflicted on him
through reports emanating from the JIT.
Mr.
Sharif has won elections before notwithstanding allegations of personal
financial wrongdoing, but a new wave of charges could make things difficult for
him in Punjab’s urban centres when Pakistan goes to the polls in 2018.
Ironically,
the Supreme Court’s nearly 549-page judgment begins not by invoking some
eminent jurist, but with a reference to Mario Puzo’s novel The
Godfather, citing Balzac’s well-known words, “Behind every great fortune
there is a crime.” But then most Pakistanis, including judges and military
officers, have known for years that the fortunes of Pakistan’s uber-wealthy
families come from bending or breaking laws or using political connections for
private advantage. Why go looking into the origins of wealth now?
The
creation of the JIT, and including two military intelligence service members
who are not trained in matters relating to business and finance, says more
about Pakistan’s judicial and political system than it says about the merits of
this particular case. The issue in Pakistan is never corruption or failing to
explain the source of funds for property. It is where someone fits into the
permanent state’s scheme of things.
Nawaz
Sharif was fine when he was picked up by General Zia-ul-Haq as leader of a
military-backed Punjabi political elite after the coup of 1977. Courts and investigators
seldom found anything wrong with the phenomenal expansion of his family’s
wealth until he decided to start questioning Pakistan’s military establishment
and, in recent years, even assert himself in core policy areas. Politicians can
make money as long as they do not seek a role in policymaking. When Benazir
Bhutto stood for a different paradigm for Pakistan, she and her husband were
subjected to long-drawn legal proceedings over corruption. Asif Ali Zardari
might have fewer problems on that score now after he is content to parrot the
establishment’s views on national security and foreign policy. Nawaz Sharif is
being put through the wringer to become more like Mr. Zardari and less like
Bhutto.
As
for the Pakistani Supreme Court, it intervenes to swing politics one way or
another by favouring the country’s establishment against politicians or vice
versa, to justify patently unconstitutional military takeovers and occasionally
to embarrass one party against another. Unlike elsewhere in the world, its function
is not just to determine the constitutionality and legality of judgments
already given by lower courts.
As
a victim of one such Commission (ironically, created on Mr. Sharif’s petition)
in the so-called Memogate Case, I know that the principal damage inflicted by
its proceedings is to public image. The Memogate Commission’s findings never
led to criminal charges, not even an FIR, against me for any crime as none was
actually committed. But its proceedings and comments created sufficient
political noise for some Pakistanis to still think I am a fugitive from
Pakistani law.
Signal from the deep
state?
Generating
smoke without fire against persons deemed difficult or uncontrollable by
Pakistan’s permanent state establishment, the deep state, is often the greatest
accomplishment of inquiries created by the Supreme Court on direct petitions
like the one over the Panama Papers.
The
JIT might still find nothing definitive for prosecution but Mr. Sharif is on
notice. And that is how Pakistan’s system is designed to work.
Husain
Haqqani, Director for South and Central Asia at the Hudson Institute in
Washington DC, was Pakistan’s Ambassador to the United States from 2008 to 2011
