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Legal Eye

May 7, 2016

The new minus-one

Opinion

May 7, 2016

Legal eye

The writer is a lawyer based in
Islamabad.

We are a strange people. So consumed by transient emotion that in our moment of excitement everything else blurs itself out. So amnesic that the second the moment passes we can’t recall what obsessed us. And so devoted to imagined messiahs that even the gods could get envious.

From 2009 to 2013, Swiss accounts and money stashed abroad by Asif Zardari seemed to be the cause of Pakistan’s existential crisis. Back then we had projected Iftikhar Chaudhry as the messiah who was to save us from the great evil unleashed upon us.

Fast forward to 2016, Nawaz Sharif is evil incarnate and Panama is the bane of Pakistan’s existence. And we now want Raheel Sharif to be our saviour. As he has six months to go, time is of the essence. The new narrative is that any inquiry that doesn’t remain exclusively focused on NS and doesn’t start with the premise that he is guilty is nothing other than a devious device to save him and protect all forms of corruption feeding on the blood, toil, tears and sweat of the poor in our beloved homeland.

The Panama leaks have made Pakistan angry. We must not let the anger dissipate. But how do we channelise it to hold to account public office-holders and induce behavioural change in those vested with authority and granted control over state largess? It isn’t easy to convince our nation (which likes spectacle and believes that hanging a few people for crimes to be discouraged is a magical solution to everything) to seize the Panama moment to put in place effective mechanisms that ensure that no public office-holder can live beyond his declared means.

The choice before us is clear. We can either let the opposition use this moment and our anger to bleed and/or remove NS without holding any other public office-holder accountable. Or we can initiate an all-inclusive disclosure and accountability process that starts with NS but doesn’t stop with him and instead covers all public office-holders, including political party heads that exercise control over party MPs and senators. If Pakistan’s problem is NS, the opposition’s ToRs are OK. But if it is corruption, the ToRs are incomplete and misguided.

Amongst the authors of the ToRs are two celebrated constitutional minds, Aitzaz Ahsan and Hamid Khan. If the government were to accept the ToRs verbatim and convert them into a law and either Hasan or Hussain Sharif were to engage either of these giants to challenge the vires of such law, there is little doubt that key provisions of such law would be struck down for being discriminatory, in breach of fundamental rights and thus unconstitutional. Without getting into legalese, there are at least four problems with the ToRs that jump out.

One, using NAB law analogy, the ToRs state that “the burden of proof in all matters shall be entirely on the Respondent and his family to prove their innocence”. So is the commission to deem every accused Panama-ite guilty unless he can establish to the commission’s satisfaction that he is innocent? This provision is in breach of fundamental principles of fairness and justice that every person is to be deemed innocent until proven guilty, and the onus of proof is on the one who alleges illegality and not on the one who is accused.

Even in relation to NAB law the Supreme Court has held in the Asfandyar Wali case that the state is first required to establish that the accused owns property that he cannot account for after which the onus gets reversed. In other words, the onus of proof is reversed only after the prosecution first makes out a prima facie case.

Two, the ToRs require that anyone accused of acquiring offshore assets illegally must grant a general power of attorney to those investigating the allegations to enable them to acquire all information regarding assets and funds of the accused on behalf of the accused, or else he will be presumed guilty. The problem with this creative idea is that Article 13 of our constitution declares protection against self-incrimination to be a fundamental right (as do almost all fair legal regimes) and no accused can be compelled to be a witness against himself.

Three, the commission is to determine if NS and family were “state guests” after being let out of jail by Musharraf and exiled to Saudi Arabia, and consequently whether any gifts lavished on them during their banishment actually belong to the state. The purpose is obvious: if the Sharifs claim that funds used for purchase of London properties were a by-product of Saudi largess bestowed on them while in exile, the opposition shouldn’t be left high and dry. But the patron saints of our democracy trying to characterise the forced exile of a PM as a state visit is just shameful.

And four, the proposed scope of the commission is NS and Panama specific. Here the opposition’s logic is quite inexplicable: the commission should focus on Panama alone because that is what is before us today! But the Panama leaks are only the tip of the iceberg. One whistleblower stole and dumped data of one law firm that specialises in offshore structures and that threw up the names of over 600 Pakistanis. Imagine the extent of this problem. So why shouldn’t we focus on this malady holistically instead of zeroing in on what was disclosed by freak chance?

Here is a test of fairness of the proposed law for PPP, prepared under the able guidance of its leader in Senate. Let’s call this law the Panama Papers & Swiss Accounts (Inquiry and Trial) Act, given that information regarding Zardari’s accounts and assets is also before us. And let’s limit its scope to the heads of the two mainstream parties, the PML-N and PPP. Let’s just add another provision and require the Zardari-Bhutto clan to do in relation to their Swiss accounts and foreign assets what the PPP wishes the Sharifs to do vis-à-vis their offshore assets. Fair?

The opposition is right. We need special legislation to investigate the Panama leaks. But we need a law that is just and comprehensive, starts with the Panama investigation and culminates in matching all assets (foreign and domestic) of public office-holders with their known and declared sources of income. We need a Public Office Holder Income and Assets Reconciliation Act, 2016.

This law must do four things. One, require all public office-holders to disclose their and their immediate family members’ assets (foreign and domestic) along with dates of acquisition, value at time of acquisition and present value. Two, require them to file reconciliation statements that match assets with declared sources of income at time of acquisition and explain any discrepancies. Three, set up an independent commission (overseen by a committee of judges headed by the chief justice) that would spearhead the investigation and prosecution.

The commission can report to the committee of judges to be independent of the executive, have the authority to seek legal assistance from other countries and authorities and regulators in Pakistan, and be able to co-opt forensic experts etc as required. The law can enable the Supreme Court to exercise its Article 190 powers to facilitate the commission. Such law can cover all public office-holders, and require the commission to scrutinise disclosures and reconciliation statements stage-wise, starting with politicos, followed by babus, judges and generals.

And, finally, the penal consequences: a 20-year ban from public office in case of false disclosure or discrepant reconciliation statements by politicos, removal from service for bureaucrats, judges and generals, and confiscation of property and jail terms for all. Such law and commission could evolve into a permanent accountability machinery, eventually replacing NAB. This is very doable.

The law can be put together in weeks if not days. But relevant stakeholders will have to be motivated by the object of across-the-board accountability, not political expediency and Pyrrhic victories.

Email: [email protected]