As expected, instead of settling the issue, a 3/2 judgment in the Panama Leaks case before the Supreme Court has triggered bitter political controversy and tension. Both the PMLN and PTI have celebrated their respective “victories” – one side says that all the judges agree that the Sharifs have lied about their money trail while the other says that a majority has not disqualified Nawaz Sharif. The argument has spilled over to the credentials, credibility and ability of the Joint Investigation Team to deliver a fair result in 60 days. Each side is also mulling the pros and cons of filing a review petition to swing the judgment in its favour conclusively. Meanwhile, most analysis of the judgment is coloured by the political prejudices of commentators.
Some facts, as opposed to opinions, may be stated to clear the fog. First, the “dissenting” judges have charted new legal territory in forming their opinion. This will have significant repercussions in state and society. Reliance on Articles 62 and 63 of the constitution – who is a good Muslim and who is not – is particularly fraught with dire consequences. Second, the “conformist” judges have tasked a JIT to probe the matter. This comprises most investigators from the very civilian accountability institutions in which they had earlier expressed little faith. Third, all the judges are agreed that Maryam Nawaz Sharif is not a dependent of Nawaz Sharif even as they have asked the JIT to investigate the ownership of the London properties in which she figures as a beneficial owner (according to the petitioner) or “trustee” (according to the respondents).
This last fact is important. Legally, Maryam is the only link to the London properties at the heart of the matter relating to Nawaz Sharif. He is not listed as a beneficial owner in any foreign property or offshore company. The judges have also held that his statements in or out of parliament are “irrelevant” regardless of the inaccuracies or omissions. In other words, the question of the “money trail” is now confined to the two sons and daughter of Nawaz Sharif. If the JIT can prove they have lied, they will be for the chop. Since Maryam is not dependent on Nawaz Sharif, he is not responsible for her actions.
There is, however, another way the JIT can get at Nawaz Sharif. That is by reopening the Hudaybia Paper Mills case and proving that it is a central plank in a big money laundering trail involving the Prime Minister. Whether this can be done in 60 days is a different question altogether.
There is an even more troubling fact at work here. Politics rather than law is dominating the debate. Justice Asif Khosa’s quotation from The Godfather and Balzac (“behind every great fortune there is a crime”) betrays his political prejudice. Chief Justice Saqib Nisar’s personal request to the “extraordinary” Imran Khan to relieve the political pressure on the courts is extraordinary in itself. Earlier, Justice Nisar had to publicly swear his neutrality on the Quran when he was regaled by allegations of being “close” to Nawaz Sharif. The statement from the ISPR on behalf of the Army High Command that the institution will conduct itself with neutrality and transparency is another manifestation of political pressure. A campaign of vilification against one of the “conformist” judges for obtaining a plot of land (which is his legal due routinely) from the government is also primed to shunt him into the other camp.
The fact is that from Day One, political pressure rather than legal nicety has been at the heart of the movement to oust Nawaz Sharif. It started with Imran Khan’s dharnas and protest rallies through 2014-15. When that failed to dislodge Nawaz Sharif, the opposition led by the PTI went to court, alleging massive and planned electoral rigging. When a judicial commission headed by the chief justice of the Supreme Court and approved by the opposition rejected that allegation, the PTI went back to the streets, threatening a lockdown of Islamabad last October. When the government foiled that “uprising”, the PTI returned to the Supreme Court and pressurized it into forming a commission to investigate Panamaleaks (earlier the same SC had rubbished the same petition by refusing to hear it). Meanwhile the PTI has been pressurizing the Election Commission of Pakistan to do its bidding. The PTI doesn’t want it to adjudge a petition against Imran Khan alleging massive fraud in the money trail that feeds into his election funds. The Chief Election Commissioner is now threatening to hold Imran Khan in contempt for undermining the credibility and writ of the ECP.
The scene is now set for a further politicization of the matter. The PMLN is likely to resort to counter-pressure tactics to protect itself. This is bound to draw the military into the fray as arbitrator of the last resort. We have been through that route before and it is not good for Pakistan.