Fundamental probe

The legal parameters for the Supreme Court’s handling of the Panama leaks and other related affairs are shaping up quite quickly. Today is a crucial day; the Supreme Court will receive the response from Mariam Nawaz and Nawaz Sharif’s sons. His son-in-law has already submitted his response. Earlier, the prime minister too had given his clear response – on paper – to the myriad allegations the PTI and others have made about his asset accumulation, transferring of wealth abroad, and hiding and stealing public money.

The various terms of reference for the commission that the Supreme Court is likely to finalise soon are also before the honourable judges. They have said that they are not bound by anyone’s ToRs and may create their own in case the collective wisdom of the politicians fails to reach a consensus, which it has not reached yet and nor is it likely to reach anytime soon.

The PPP’s stand that parliament should be the final arbiter of the legal framework within which the commission should function is increasingly cutting a lonely figure. Even within the party there are fewer and fewer takers for this proposition. It is only Aitzaz Ahsan who is peddling this line. The party’s other stance that there should be a special law created to facilitate the commission’s probe too seems like a long shot. The Supreme Court, by forming a commission under its own supervision, can easily endow it with a functional legal strength to make it potent.

Going to parliament for new legislation will be a troubled route without an outcome. Asking the government to pass the law as per the requirement of the court will be setting a bad precedent of legislation being forced upon the executive court decree and can have long-term implications.

The material that the Sharifs have submitted so far reflects a sequential legal strategy. Taking one step at a time they have tried to separate three layers of the issue they are confronted with: one, the prime minister, his assets and his declarations; two, the PM’s son-in-law’s assets and his declarations; three, the PM’s daughter’s and sons’ financial affairs.

There seems to be some method in the madness of taking their time in submitting the responses and in the process also taking some raps on the knuckles from the court. It appears that the Sharif legal team wants each document’s content to fully register in the public as well as before the judges before bringing in the new one. The prime minister has rejected all allegations of hiding his assets and possessing offshore companies. He has stated that he has been submitting his tax returns faithfully and that in the last election his declarations make it clear that Mariam Nawaz is not his dependent. His son-in-law too has denied that he has hidden his spouse’s wealth and that his declarations are in line with the law.

This sets the tone of the submission from the Mariam Nawaz. She has to state on court record that she has not a penny abroad nor is she the owner of a company nor has any business interests. Her association with properties abroad and shares in companies, if any, have to be explained to establish that she is not a conduit or cover for transferring questionable wealth and keeping it in the safe haven of personal accounts. The PM’s sons will have to show where the money came from and whether their business flourished with the undeclared wealth of their father, transferred through stealth means and acquired in silence without taxes being paid on them.

One can only assume that with the prime minister and his son-in-law having showed their hand to the court, the rest of the documents from Mariam Nawaz and the two sons will only follow that line of submission.

This runs totally counter to the standard narrative that the Sharifs’ opponents have built both in public and in the court. They have tried to show that the Sharifs’ network is all interconnected and that the base of the wealth of the family abroad is dirty and untaxed money transferred from the country. They have pleaded the case of the disqualification of Nawaz Sharif and his close associates on the grounds of these financial improprieties. They   have insisted that what came out of the Panama leaks about the offshore companies is enough to drop the guillotine on the elder Sharif.

With the Sharifs now contesting each and every claim of the petitioners, the work for the Supreme Court’s commission is already pretty much defined. The commission will have to establish documentary inconsistencies in the denial of allegations by the Sharifs. Meeting the criterion of fair judgement, the commission will have to also establish through documentary evidence that there is enough material available to prove that the Sharifs did commit the crime(s) that the petitioners are accusing them of.

The commission may have to concern itself with the core issues in these petitions and draw a distinction between frivolous and secondary allegations and the primary case. The reasons for drawing this distinction are many.

For one thing, there is great demand for a ‘speedy conclusion’ which, while should not be any legal consequence for the court, does require focus in the meaty part of the petitions. For another, the petitions for probe, while legal submissions, are also deeply steeped in politics of ambition and hate. Their formulations are as much for the consumption of the honourable judges as they are for television tickers. The court and the commission that it may form will only be distracted if the proceedings are not kept straight and narrow.

Just as important is the fact that the ToRs of the commission will also have to allow this legal body to bring into its purview of probe not just the Sharifs but others too, including Jehangir Khan Tareen, Imran Khan and their close family members. Besides them, at some point that probe might also have to concern itself with serious allegations about many of the stalwarts of the PPP and the rest.

With some much work at hand, the commission will have to see the wood for the trees and create a probe methodology that at once is fair to all and prejudiced against none – and yet is straight and narrow.

There isn’t any doubt that the Supreme Court and the commission will be subjected to a silent psy war of deliberately inflated expectations and indirect insinuations. The PPP has already said that they would want to see if the court deals with Nawaz Sharif the same way as it dealt with Yusuf Raza Gilani who was disqualified to hold the office of the prime minister on grounds of contempt, which he committed by refusing to write to the Swiss authorities to reopen the probe against Asif Ali Zardari.

The PTI too has been piling up pressure on the court. Imran Khan has put all his damaged eggs in the basket of this case after the fiasco he made of his Islamabad lockdown call. The PTI’s media pronouncements and statements galore is a powerful tool to direct the probe from outside and ensure that it produces the result that it so ardently desires: Prime Minister Sharif’s disqualification. With that chopped head in his hand, Imran wants to turn to his supporters to say that he was always right.

With so much happening outside the court, it becomes all the more necessary to make the commission’s probe pay attention to the fundamentals and ensure that these fundamentals are so designed that they get all the accused to stand on the same line. That the prime minister and his family are at the head of the queue of the accused is obvious; but the probe has to make sure the person standing next in line must not have the comfort that he won’t be frisked and made to answer about his alleged corruption.      

Email: syedtalathussain@gmail.com

Twitter: @TalatHussain12

The writer is former executive editor of The News and a senior journalist with Geo TV.