Jan Achakzai |
As the Supreme Court resumes the hearing of the Panama Case after the receipt of the JIT report on Monday, July 17th, 2017, Pakistan’s judicial order also goes on trial—is it going to be an encounter of justice or fair play of justice? Either justice will prevail or true justice will be sought again. This we will find out soon.
There have been serious issues with the JIT’s composition, mandate, TORs, modus operandi and the quality of its findings. Many verdicts have been given but before pointing out any finger towards the quality of the JIT’s findings, one would like to draw attention to some other points.
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The mandated Supreme Court’s TORs were only 13 questions, framed by the 5-member bench of the Supreme Court in its judgment delivered on April 20th, 2017. The TORs did not include revisiting Hudaibiya Paper Mills nor did they require any probe into Sharif family’s alleged gaps about living beyond means. The original thrust was whether the four flats were purchased in 2006 vs the 1990s and how the business partnership of Thani family materialized in these flats. The primary purpose was to find out whether the Prime Minister had any financial links with the flats or whether Maryam Nawaz was dependent of PM. Secondly, was Maryam Nawaz the sole beneficiary of the two companies holding the flats, or was she the trustee.
Weak linkages
Interestingly after evaluating the report, one might find that several of the findings of the JIT were based on assumption. For example, the JIT has miserably failed to establish any credible link of the Prime Minister Nawaz Sharif with these flats except concluding that because he was living there in 1990s so “MAY BE” he owned them. The JIT also did not succeed to establish any vivid trial of alleged money laundering from Pakistan for the purchase of these flats, except few transfers of funds between Saudi Arabia, Dubai and the U.K.
Had JIT got any letter from BVISECP it would have claimed to have actually established whether Maryam Nawaz was also a trustee or not as per her claim. But they could not find it and the other two letters are definitely not the smoking guns they want the Supreme Court to treat as incrementing evidence.
The tricky issue was to find out if Maryam Nawaz was the beneficial owner of Nelson and Nescoll or the trustee. The JIT established the authenticity of the two letters between Panama Virgin Island’s Investigative authority called FIA & Mossak Fonseka, the Law Firm, stating that Maryam Nawaz was the sole beneficial owner of the offshore companies. Surprisingly, the same letter explicitly clarifies that the firm has no information if Maryam Nawaz was also the trustee of these companies. Here is the quote of the letter from Mossak Fonseka clearly warning that it does not have the name of the trustee of the two companies.: “Please be informed we are not in receipt of the names(s) of contact details, physical address of the Settler, trustee, Beneficiary of the trust (s) connected to or concerned with the aforementioned companies”. The puzzling element is that the JIT confidently quoted the letter claiming they have found out a solid proof of Maryam Nawaz’s ownership of the flats happened to ignore a viable part of the same letter which showed that the law firm has no information of the trustee. It seems the JIT has cherry picked the information and left the rest.
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The natural course of action for the JIT would have been to directly ask the BVISECP, similar to Pakistan’s SECP, which is the sole authority to give information about the shareholders, directors, and trustees of the two companies. Had JIT got any letter from BVISECP it would have claimed to have actually established whether Maryam Nawaz was also a trustee or not as per her claim. But they could not find it and the other two letters are definitely not the smoking guns they want the Supreme Court to treat as incrementing evidence.
Lack of proofs
Another “evidence” the JIT takes pride to dig out is a letter from Dubai’s Justice Department. This letter should not have been even attached. The relevance of the letter is denied wholly because the UAE banking sector does not have a record for more than five years, hence the veracity of the 12 million Darham cash transaction taking place decades ago cannot be verified through the letter. Thus this letter makes a weak and a questionable evidence. In other words, they are in no position to prove or disprove the claim of the Sharif family.
The second letter from the Customs authorities claiming to have no record of scrap material shifted to Saudi Arabia from Dubai port proves nothing. Interestingly the Sharifs never claimed to any shifting of scraps to Saudi Arabia from Dubai port. They claimed that the scraped machinery was transported by the Sharjah port. The JIT blindly attached the letter as evidence without checking glaring error. This letter cannot be considered as final evidence.
The JIT has unfairly confused its direction of inquiry in UAE and at worse clearly transgressed into the realm of bias.
The Alibi of Sharif family’s money trail of over three decades’ old business, ventures ultimately linking to London flats, starts from Dubai and ends with Al Thani family’ business relations. By involving in procedural issue, the JIT did not bother to have the interview of the Qatari Prince, who was the main source of the Alibi, thus giving a legitimacy to the claim of Sharif family that the JIT was actually working with presupposed notion to frame them.
What is obvious is that the JIT has heavily relied on the source reports which have no evidentiary value unless the entities and individuals providing them are cross examined in the court of law.
During the investigation, it was also found out that Mian Nawaz Sharif was the Chairman of the Capital FZE board, and according to the JIT, he was drawing monetary benefit from the Capital FZE. The entire claim is hilariously Wong. First of all, Capital FZE is not an offshore company nor Mian Nawaz Sharif drew any monetary benefits from it. The JIT tried to trap the PM with one mere letter and zero evidence, making the issue as dramatic as possible. The JIT presented this as an offshore company and produced great media headlines.
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However, it could not establish beyond reasonable doubt that PM was the shareholder and that he was using the money from the company. All this has no bearing on the SC’s mandated line of inquiry: the Prime Minister’s link with four London flats.What is obvious is that the JIT has heavily relied on the source reports which have no evidentiary value unless the entities and individuals providing them are cross examined in the court of law.
The Supreme Court has the impossible task to deliver any adverse judgment on contested facts and has no mechanism to counter check the JIT’s “source material” and Sharif family’s challenge of JIT “facts”.
History and the people of Pakistan still remember the negative judicial legacies of checkered past as examples of judicial overreach: justifying three Martial Laws under the doctrine of necessity and the judicial murder of an elected Prime Minister.
To conclude, the whole case rests on the edifice of Article 184(3) which automatically deprives the Prime Minister and his family of constitutionally guaranteed right to a fair trial including the right to appeal. Without “incremental undisputed final evidence” against the Prime Minister, the Supreme Court may border on in breach of the universal principle of all jurisprudence, “justice should not only be done but also should seen to be done”.
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History and the people of Pakistan still remember the negative judicial legacies of checkered past as examples of judicial overreach: justifying three Martial Laws under the doctrine of necessity and the judicial murder of an elected Prime Minister. Also, phrases like “Kangaroo Court”, “Dogar Court” and “Chohdary Iftikhar Court” are living indictment of Pakistan’s judicial history.
As far as article 62 and 63 are concerned, there has been no precedent and any judgment on the basis of these articles will be seen as a judicial coup by the posterity.
Jan Achakzai is a geopolitical analyst, a party leader in the ruling PML-N party, and advisor to Balochistan Government on media and strategic communication. He remained associated BBC World Service in London covering South and West Asia. The views expressed in this article are the author’s own and do not necessarily reflect Global Village Space’s editorial policy.