Legal eye
The Panama case being heard by our Supreme Court, seeking Nawaz Sharif’s disqualification as prime minister, is probably one of the most polarising cases in recent history. Most people following the case have their minds already made up about the case. The only question for them is whether the SC’s verdict will confirm and legitimize their version of the truth or not.
This is a hard case, not from a purely legal perspective, but because it involves thorny moral questions. And whatever way it is decided, its consequences will affect us all one way or another.
Opposition parties and their supporters are convinced that the money used to buy the London flats is dirty money, NS and family members have been lying through their teeth in trying to explain how the properties were acquired, and this is a once-in-a-lifetime chance to let the consequences of mega-corruption in Pakistan flow all the way to the top. Equally importantly, unless NS is fatally hurt by the verdict, which can be used to acquire political leverage, the prospect of the PTI and PPP fighting the PML-N in the political realm alone and defeating it in 2018 seems unreal.
For the PML-N, this is a conspiracy to oust the PM through dirty tricks. It should be left to the people to hold NS accountable on Election Day if they find him culpable. They see the dharna of 2014, the dharna-plus of 2016 and this case as scripted acts of the same play. Privately, few PML-N stalwarts vouch for the Sharif family’s story, but their argument is that this is old news and to give continuity to our political system we must let bygones be bygones.
The other argument is that even if the rich Sharifs sent some of their money to buy the London flats through informal channels, what is the big deal? As the deeds of the Sharifs are no different from those of rich PPP leaders and the PTI’s financial sponsors, why should the Sharifs be singled out in a country where no one pays taxes and declares wealth honestly?
The concerns of those who don’t take a partisan view of the matter are different. On the one hand is the moral perspective. The story of the Qatari prince vouching for Sharifs seems like a story of a benefactor bailing out a friend in time of need. In many cultures, including ours, personal loyalty superseding notions of right and wrong is not just acceptable but also seen as an endearing trait. And this is where law and morality get entwined. What do you do where the law presumes innocence of all until proven guilty and the required proof isn’t forthcoming?
We have all heard about Santa Claus, Tooth Fairy, Bigfoot and the Loch Ness Monster etc. It is possible that these mythical creatures exist. But their existence seems improbable to sober adults. The narrative provided by the Sharifs to the SC to justify their ownership of the flats is theoretically possible, but doesn’t seem probable or believable to many. This is where the distinction between law and morality becomes stark. Jurists have been asking since ages if law has the moral authority it claims. And the general consensus for a few centuries has been that it doesn’t.
The presumption of innocence, laying onus of proof on ‘one who affirms and not the one who denies’, has its origin in Roman criminal law. It has been adopted by common law that we follow. The logic is simple. A legal system must strike the right balance between safety and efficiency. If the system begins to presume guilt and require the accused to disprove it, it might convict many who are innocent. By presuming innocence, which presumption can be overturned by proof, the system errs on the side of safety with the accused being let free in case of doubt.
Within such a system all that an accused really needs to do to be let off the hook is sow reasonable doubt in the story of one who accuses. If an accused succeeds in poking holes in the prosecution’s story, which in turn results in a verdict of ‘not guilty’ is the system really saying that the accused is innocent? No it is not. All the system is saying is that the accuser has been unable to prove the guilt of the accused beyond reasonable doubt by adducing evidence in accordance with stated rules of procedure and evidence. A ‘not guilty’ verdict isn’t a certificate of innocence.
Remember the OJ Simpson case, the American football star who was accused of murdering his ex-wife Nicole Brown Simpson and her friend Ron Goldman in 1994? After one of the most racially polarising and publicised criminal trials in US history, the jury found OJ not guilty of murder. But in 1997, Ron Goldman’s parents brought a civil suit against OJ for wrongful death. The jury in the civil trial, where the standard of proof was lower, found OJ ‘responsible’ for the murders and awarded $33.5 million in damages to the victims’ families.
The jury in the criminal trial had not found OJ to be innocent. It had only found that prosecution had been unable to prove through admissible evidence beyond reasonable doubt that OJ was the murderer. The justice system is administered and manned by humans who are part of society and are influenced by their likes, dislikes and socialising influences just like everyone else. The debate about how to strike the right balance between punishing wrongdoing in a society and not inadvertently punishing the innocent is a legitimate and essential one.
Under Scots law, a criminal trial may end in one of three verdicts: ‘guilty’, ‘not guilty’ or ‘not proven’. The ‘not proven’ verdict is interpreted as the judge or jury saying that while there was insufficient evidence to convict the accused, he/she doesn’t come across as innocent either. In other words such a verdict brings out the contrast between law and morality, while bringing them together ie law demands that the accused not be convicted, but morality demands that he/she not be sent with a certificate of innocence.
In the Panama case, Pakistan seems stuck between this void between law and morality. The demands of law – presumption of innocence attaching to the accused; no one to be punished without a fair trial; apex court not acting as a trial court; truth being thrashed out in an adversarial system with the accuser and the accused making their respective cases before an impartial adjudicator – are all sensible demands meant to prevent the criminal justice system from becoming abusive and designed to err on the side of safety and caution.
The demands of morality and commonsense – wrongdoing must be punished to keep society honest, safe and healthy; if someone is caught with their hands in the cookie jar, penal consequences must flow to prevent others from following suit; accountability must start from the top and leaders must lead by personal example; if a society stops distinguishing between right and wrong, the very basis of self-correction extinguishes – are equally weighty. So what to do if you feel that your PM isn’t being truthful, but there is no evidence to prove him a liar?
What rule of law is meant to do is inject certainty into affairs of the state and society by defining the rules of the game and meticulously following them without exception. We are not a rule of law society because no one around here can be certain what the rules are and that they won’t be changed midstream to accommodate the interests of one power elite or another.
In a polity where rules aren’t entrenched, the law isn’t certain, and cynics see judicial outcomes flowing backward from consequences desirable for the winning power elite, any court verdict – whether motivated by law or morality – will attract controversy.
The writer is a lawyer based in Islamabad.
Email: sattar@post.harvard.edu
