Hunger games – II

Legal eye

The writer is a lawyer based in Islamabad.

Dharna II or the Islamabad lockdown was a fishing expedition. Its stated object was to paralyse the federal government and forcefully remove the prime minister. It failed. Thank God for that.

To make it a success, the PTI was relying on two things. One, a large number of people pouring into Islamabad and rendering key federal government offices dysfunctional – the numbers being such that civil law-enforcement agencies would be unable to control them; and two, a military unwilling to act in aid of civil power on the federal government’s beckoning except on the condition that the PM would voluntarily step down and allow the creation of some sort of national government to hold the Panama inquiry and fresh elections subsequently.

The last few weeks saw the most enthusiasm for the Kakar formula probably since its inception. The 90s didn’t need a million people on the roads to trigger the Kakar formula. We had the infamous Article 58(2)(b) back then. All you needed was a president willing to sack the government for alleged corruption and breakdown of constitutional order and the umpire would step in. The government could go challenge the order in the courts all it wanted. But so long as the military (with its monopoly over force) accepted the order as valid, the government was gone.

In the absence of Article 58(2)(b) you need an actual breakdown of order for the government to seek the military’s aid. And you need an army chief sufficiently ambitious or piqued, who would refuse to help the government as required by law without imposing preconditions. And then you need a PM sufficiently compromised to walk into the sunset when pressured to be able to live and fight another day. In this case, the chief had quelled rumours about any ambition to prolong his stay. If he hadn’t, we’d hear about the Musharraf and not the Kakar formula.

The PTI was punting on a military vexed enough to want to grab any opportunity to see Nawaz Sharif cut to size and out of office, but yet not interested in assuming power itself. Thus the Kakar formula was being dusted for use. In the weeks leading to the lockdown, NS had made clear that he was ready for a fight. That notwithstanding, for the arbiters to be brought in, anarchy and breakdown of order was a prerequisite. The PTI can muster thousands of hardcore supporters for speeches, song and dance. But, as it found out, they wouldn’t come out to spread anarchy.

And that was that. The PTI’s speculative manoeuvre didn’t get past first base. The Supreme Court’s dexterous handling of the November 1 hearing was a godsend. It helped the PTI save face. They say it is good to hope for the best and be prepared for the worst. Will the PTI begin to focus on the second part of this received wisdom too? Imran Khan’s enthusiasm for CJ Iftikhar Chaudhry was abiding (even during the Arsalan Iftikhar saga), till he refused to act on IK’s belief that Election 2013 was rigged. IK’s zest for the judicial commission on electoral rigging was similarly boundless.

The thing about courts is that they are courts of law, not courts of morality or courts of justice unconstrained by requirements of law. The law says that the one who accuses another of wrongdoing bears the burden of proof. Just because one party makes an allegation that large segments of society believe doesn’t mean that the burden gets automatically reversed. That happens in media trials but not in trials conducted by courts of law. The other thing about our court system is that it is adversarial. It produces winners and losers.

Had there been sufficient incriminating evidence to seek the conviction of NS and his progeny under existing laws there why would anyone demand the formation of an inquiry commission? The petitioners would file their evidence before a competent court. The court would conduct a trial and pass judgement. Why is this a case for further inquiry? Opposition parties are only crying hoarse over the need for a special law to set up a commission to enquire into the Panama affair because there probably doesn’t exist sufficient admissible evidence at the moment.

The draft Panama Papers Inquiries Act 2016 and the ToRs that the opposition painstakingly put together, with the assistance of Aitzaz Ahsan and other able lawyers, aims to do five extraordinary things.

One, it seeks to expand the scope of the inquiry by defining the term “respondents” to include family members of those named in the Panama Papers. This is to bring NS within the fold, as he isn’t directly named.

Two, it seeks to reverse the burden of proof requiring those named in the Panama Papers and their families to establish that they are innocent and provide proof that the income and funds they used to procure properties outside Pakistan were legitimate.

Three, it requires the named individuals and family members to provide the commission and the experts’ committee to be appointed by it complete access to all bank and company accounts and related information in foreign jurisdictions to enable a forensic audit of the such individuals to be conducted.

Four, it conceives the inquiry to be conducted piecemeal – starting with those who have “publicly volunteered for accountability or have publicly admitted holding of assets and properties or off-shore companies abroad” ie mainly NS and Co.

And five, it limits the inquiry to revelations made by and individuals named in the Panama Papers and doesn’t seek to expand it to all Pakistanis or public-office holders with offshore accounts or properties ie Switzerland, Dubai, Isle of Man etc.

Without such a law (which has no possibility of being passed by a PML-N-led parliament) the content of petitions pending before the SC will in all likelihood help determine the ToRs of the one-man commission to be appointed by the court. The burden of proof will remain on the petitioners. Will documents stolen from a law firm and leaked by the Panama Papers be treated as admissible evidence? And then the jurisdictions that hold information related to offshore accounts and properties fall beyond the authority and jurisdiction of our apex court.

The SC and the one-judge-commission may be disinclined to single out NS and his kids while undertaking the inquiry. In view of the tale told by NS in parliament regarding this sordid affair, the original funds transferred abroad may have been in the name of Mian Mohammad Sharif and gifted by him to his children or grandchildren. And he is no longer around. Further, given that the alleged transactions are at least a couple of decades old, the statute of limitations might become another obstacle.

The matter is now sub judice and one cannot speculate about its outcome. But in terms of outcomes, the court can find NS guilty of money laundering, tax evasion or non-disclosure. Or the court can find that there isn’t enough evidence to indict NS or his children. Or if his story is backed by documents, it can give him a clean chit of health. Given the hype created by the PTI about the proven corruption of NS that needs no further proof, from a political perspective the lack of indictment will also amount to a clean chit of health for NS and PML-N in 2018.

Who knows – the Sharifs may disclose something that is self-incriminating. There may be loose ends. They might have been clumsy enough to be unable to back up even the very basic story told in parliament. In that sense this legal challenge is also a fishing expedition. It may get the Sharifs or it may not. But if it doesn’t, it might wipe the Sharifs clean of the moral stigma inflicted by the Panama scandal, which, if left to grow, would be a serious liability come 2018. If this expedition fails, moving court with scant evidence might look like a political blunder by the PTI.

Email: sattar@post.harvard.edu