An analysis of the JIT proceedings grounded in facts of the April 20 judgement of the Supreme Court is much warranted, given the speculations floating around in evening television talk shows. Needless to say, such an analysis may also dull the pleasure some of us are deriving from this political drama — spoiler alert for such readers.
The Panama Papers petitions had primarily sought disqualification of Prime Minister Nawaz Sharif on two grounds. Firstly, that he had failed to honestly declare his assets when filing his nomination papers for the 2013 election. Secondly, that his statements on the Panama Papers leaks were contradictory, amounting to lying to the public and the court.
If Nawaz Sharif is found to be a beneficial owner of London flats, the matter may be referred to an Election Tribunal. This may result in an eventual adverse finding for the premier, but it will probably be a long and drawn out process
Other points — such as nonpayment of tax on cash gifts received from his sons and not declaring Maryam Nawaz’s assets in his nomination papers — were also raised, but they were deemed to be without force by the court.
The case now hinges on determining whether the PM has had any kind of proprietary rights in London flats that would have require disclosure in his nomination papers. And the JIT has been tasked to determine how these flats were acquired.
The three judges who had written the majority opinion in the April 20 verdict — Justice Ejaz Afzal, Justice Sheikh Azmat Saeed, and Justice Ijazul Ahsan — are overseeing the probe. It may be helpful to briefly recall what these judges noted in the judgement to get a sense of possible scenarios the JIT probe may lead to.
Justice Ejaz Afzal had noted that while the Representation of People Act (RoPA) of 1976 required a disclosure of assets before contesting an election to legislative assemblies, it did not require a person to also account for such assets. That was needed under the National Accountability Bureau (NAB) Ordinance of 1999. He stated that the court could direct forums defined in these laws to proceed against the PM if needed. Regarding accusation that the PM lied about his assets, Justice Afzal said that actual facts of the matter would need to be ascertained to rule on that.
Agreeing with him, Justice Sheikh Azmat Saeed stated that the court could not transplant requirements of the NAB Ordinance to RoPA provisions. He distinguished between ‘legal’ and ‘moral or ethical’ honesty, explaining that the law only concerned itself with the former. The honourable justice stated that PM’s statements, except for the one made in Parliament, pertaining to controversial properties were made under political pressure and, thus, dishonesty in those statements would not render him disqualified. He also noted that the SC or High Courts could not assume jurisdiction over matters that NAB courts, or Election Tribunals are charged to deal with.
Justice Ijazul Ahsan took a similar line and stated that a probe was required to determine whether Nawaz Sharif was a beneficial owner of the London flats. He also observed that an improper disclosure of assets would activate the election tribunals, and an inability to account for assets would move the NAB machinery.
This summary suggests that no immediate action to the effect of disqualification of the PM may follow from the current JIT proceedings. The three judges, nonetheless, mentioned that the SC could remove a person from public office if it was presented with irrefutable evidence that the person was not qualified for the task. This judicial power is often referred to as a write of Quo Warranto.
Now if the JIT finds that the London flats were acquired through legitimate means, this would exclude the need for proceedings in a NAB court. However, if Nawaz Sharif is found to be a beneficial owner of these flats, the matter may be referred to an Election Tribunal. This may result in an eventual adverse finding for the premier, but it will probably be a long and drawn out process.
Even if the properties were acquired through legitimate means, can the court still disqualify the premier if it becomes obvious that he lied about the properties?
Justice Ejaz Afzal has kept the possibility open by stating that a lie can only be recognised as such if true state of affairs is known. Justice Azmat Saeed is unlikely to make such a decision since the only relevant standard for him is legal honesty.
He may, however, lean towards disqualification if the JIT findings conflict with PM’s speech on the matter in the Parliament — the only statement that requires ‘legal honesty’.
Disqualification on grounds of dishonesty will most likely hinge on Justice Ahsan’s vote. Provided that he did not express his opinions on the legality of such a disqualification, we don’t know how he is likely to vote.
A second possibility is that the JIT finds irrefutable and incontrovertible evidence that Nawaz Sharif was involved in money laundering. The bench is likely to refer the matter to the NAB machinery to commence criminal proceedings. A more explosive outcome in such an instance will be a direct disqualification of the PM on the basis of the SC bench’s Quo Warranto powers.
A third possibility is that the JIT unearths some evidence of corruption, but there remains room for doubt. The matter would likely be referred to the NAB. Such a situation is unlikely to have any immediate legal consequences for the premier.
A rather different course of action that the court can take relates to the Hudabiya Paper Mill case. It could compel the NAB to file an appeal against the Lahore High Court’s decision to disallow a reinvestigation against the Sharifs on charges that the enterprise was used to whiten ill-gotten money.
These observations are based on a reading of the opinions expressed by the honorable judges in the April 20 verdict. It is still possible that the judges take a different view when the court is tasked with making a final decision.
The writer is a lawyer based in Lahore
Published in Daily Times, June 22nd, 2017.