Daily Times

To begin with, the petitions against former Prime Minister (PM) Nawaz Sharif were initially returned by the Supreme Court (SC) for being frivolous and unmaintainable. However, when Dharna-II of November 2016 failed, then Chief Justice (CJ) of the SC invited the protestors to the SC to end their agitation. Here lay the political foundations of the case. Without reviewing the rejected petitions in the Chief Justice’s chamber as per the norm, the SC took these up and fixed them for hearing.

The three petitions accused Nawaz Sharif of corruption, taking kickbacks, and money laundering pegged upon the Avenfield apartments owned by Husain Nawaz in London. None of the petitions were related to nomination papers, nor was there anything regarding non declaration of any assets.

Both sides submitted the relevant documents and Husain admitted ownership of the flats. This is an appellant court that conducted first cross examination of documents and witnesses which is outside of its constitutional remit as a court of last resort. On April 20, two out of five judges gave a verdict where two insisted on the disqualification of Nawaz Sharif, and three insisted on further investigation. One judge, Asif Saeed Khosa, wrote a dissenting note containing 14 paragraphs on the Hudaibia paper mills case, which was dead in the water because it had been thrown out by the High Court (HC) in 2014, after a 15 year trial. NAB had decided not to appeal the HC’s decision due to lack of evidence in the case and the death of Mian Mohammed Sharif. Prosecutor NAB, KK Agha, who is now a judge in the Sindh High Court, had recommended not to appeal in the SC. However, the judges verbally ordered the then Chairman NAB Chaudhry Qamaruz Zaman to file an appeal in the SC. He responded that it would be illegal to do so and against NAB’s own time bar law, as well as unreasonable because of the prosecutor’s opinion that the case was not strong.

The question arising here is how a SC judge can accuse the head of a constitutionally independent institution of violating the law and start illegal proceedings. Indeed, every facet of this order by Justice Khosa was illegal and unconstitutional, not just because it was against the law, but also because it was interfering with the remit of an independent institution. Furthermore, the law does not allow prosecution of anyone for the same allegations over and over again. It is important to note that these orders were not written down in the April 20 verdict, but the Chairman NAB was verbally badgered into it.

In the same dissenting note, Justice Khosa proceeded to reject Husain Nawaz’s statement whilst accepting materials submitted by the joint opposition petitioners. It is important to note that per the law of evidence, judging the authenticity of materials provided is the responsibility of a trial court. However, here we had a judge of the SC validating and rejecting presented evidence. Furthermore, having found no evidence during a trial that lasted almost four months, Mr Khosa proceeded to plagiarise from the internet and write in the judgment about Mr Nawaz Sharif, “The popular 1969 novel The Godfather by Mario Puzo recounted the violent tale of a Mafia family and the epigraph selected by the author was fascinating: Behind every great fortune there is a crime. … Balzac.” And based on this proceeded thus: “I may, therefore, be justified in raising an adverse inference in the matter. The fortune amassed by respondent No 1 is indeed huge and no plausible or satisfactory explanation has been advanced in that regard. Honore de Balzac may after all be right when he had said that behind every great fortune for which one is at a loss to account there is a crime.” Mr Khosa in his verdict also violated Article 66 of the constitution, which bars any speech of a member of parliament on the floor of the house to be called into any court of law, and wrote that Nawaz Sharif is not Sadiq or Amin as he told lies on the floor of the Assembly.

Leaving aside the two judges and their illegal recommendations, lets examine the verdict of the three majority judges who recommended further investigation by a JIT.  Once again, it should be noted that the formation of a JIT is the sole preserve of the Executive and not the judiciary. The irony of the recommendation to form a JIT rests on the fact that the SC declared NAB to be a dead institution, but after completion of the JIT’s mandate, ordered the same NAB to file references against the Sharif family.

Not only was NAB a dead institution according to the SC, the SC acted illegally and unconstitutionally in ordering the cadaver to file references. There is a clear cut procedure laid out in the NAB law that governs the filing of references — and said procedure does not allow for orders or interference by any outside body, be it the PM or the SC.

To top the unprecedented decision to form a JIT, the SC ordered the military intelligence agencies ISI and MI to be included in it to probe alleged white collar financial crimes. To state the obvious, these agencies have no remit on financial crimes. Their expertise lies in espionage, counter espionage and counter terrorism. Furthermore, in its April 20 decision, the SC had outlined the manner in which the JIT would be formed. Each of the five government departments were to be included and would nominate three persons out of which one would be selected for the JIT.  However, news leaked at the time of Whatsapp calls and messages via which nominations were rejected and inclusion of specific persons from these institutions was demanded. It never became clear who made the calls, but the SC defended the entire farce, violating its own order of how the JIT should be constituted. There is no transparent paper trail to show how the selection for the JIT was done.

The stupefying element was that a three member bench was yet to be constituted that would select members of the JIT. However, the selection and Whatsapp calls fiasco somehow took place even before the bench was formed. When the controversy surfaced as to who was Whatsapping the orders and who was taking the orders, there was no bench to speak of. However, once the three member bench was formed, it defended what was happening, saying they conducted the process.

The Sharif family raised objections about the four members of the JIT, because of some having strong affiliations with political opponents and petitioners against them, and some due to their past involvement in persecution cases against the family. Once again, against the principle of fair trial these objections were set aside and the Supreme Court’s hand-picked JIT remained in place. This non-transparent and strange manner of constituting an investigation team (for which the court has no constitutional authority to begin with) created a strong impression in the public of some purpose behind selecting certain people for the investigation into the Sharifs’ family business.

Next, the conduct of the JIT raised serious concerns. It began unprecedented video recording of questioning of the sitting PM and his family, and released a humiliating photograph of his son waiting in an empty room to be questioned. When objections were raised, the SC cited Indian customs to video record, and left the matter of the photo leak to the government. This is despite the fact that against principles of fair trial, the SC’s entire three member bench was monitoring the work of the JIT.

One of the institutions requested to nominate three names for the JIT was the Securities & Exchange Commission of Pakistan (SECP). It was the Chairman of the SECP, Zafar Hijazi, who disclosed the Whatsapp calls controversy because his nominations were not only rejected but an unknown person demanded the nomination of a specific person. Hijazi was then punished via a false case of tampering of some old records of an inquiry of a Sugar Mill that stood closed. It was further reported by those being questioned by the JIT that instead of focusing on their investigative work, JIT members were pressuring the witnesses to give statements against the Sharif family. Indeed, Saeed Ahmed, president National Bank, was held in the compound for the entire day and pressured to sign a pre-prepared incriminatory statement by the JIT. Yet he refused. Despite these facts coming to light, the SC bench looked away and did not intervene.

Looking at the developments from the beginning till this stage, every move seemed to be extraordinary and not according to the law of the land. Almost every action taken by the SC appeared to be in violation of the Constitution and aimed at obtaining a certain desired outcome.

The writer holds a master’s degree in Accounting & Finance, he is a businessman from Lahore with a keen interest in law and current affairs. He can be reached on Twitter @niyazee26

Published in Daily Times, May 31^st 2018.