Monday June 17, 2024

Panama case: Who carries the burden now?

By Aitzaz Ahsan
February 17, 2017

It may not be appropriate to predict the judgment of the Supreme Court of Pakistan in the Panama case. It remains within the province of the court itself to rule upon all the issues before it. It is possible however, to have a discourse on the questions that arise from the case. These questions are just two: Do the Mayfair flats belong to the family of the Prime Minister of Pakistan (a “holder of public office”)? And how were they acquired?

Although the Sharifs (and their amplified abusive co-horts), insist that the informers must carry the burden to prove that Avenfield flats belong to the Sharifs, the matter has been simplified by the Sharifs themselves. They have themselves admitted ownership. That is the more important half of the case, the one that would have been the most difficult to establish. Nothing more is now required of the informer as its burden has been discharged. It can now rest its case. QED.

Having admitted the ownership of an expensive foreign asset, the owner and “holder of public office” now carry the legal burden of proving that the asset was acquired through legitimate means and income, and through a legitimate, transparent process. That will require proof of “taxes-paid resources” and transparent legitimate banking transactions. According to Article 122 of the Qanun-e-Shahadat Order, ‘when any fact is specially within the knowledge of any person, the burden of proving that fact is upon him.’ The statute itself illustrates this in that if a person is charged with travelling on a railway without a ticket, the burden of proving that he had a ticket is on him. How the assets were acquired is specially within the knowledge of Sharifs and hence they bear the burden of proving that all the steps and means of acquisition were legitimate. Nothing is required of the informer in this regard.

If the origins of these resources are attributed by the Sharifs to earlier generation (the late patriarch Sharif), would the present owner be able avoid the adverse effect of any criminal or unlawful conduct of his/her grandfather on the ground that the present owner, himself was never at fault? In other words can a person take the benefit of, and quietly conceal and retain to himself/herself, the proceeds of crime committed by a predecessor? Can the title in a Mercedez snatched by the grandfather pass to the grandson just because the latter was not a party to the criminal deed? And can the latter be entitled to claim exemption from any criminal culpability despite concealing the crime and knowingly benefiting from it?

It is incumbent upon the present owner of the flats (whichever Sharif it may be) to establish in full detail the exact money-trail which covered the entire period from his predecessor to him/her through reliable primary and unimpeachable documentary evidence.

The Sharifs now claim that all the record was destroyed by the Musharraf regime after October 1999. But just a few days ago, Prime Minister Nawaz claimed the exact opposite on the floor of the National Assembly. Could Qatari and London records have been destroyed by the military regime? Will the court not be obliged to presume that the owner/respondent is withholding evidence from it if he pleads massive cash transactions and produces no commensurate tax records? Will the court, therefore, not be obliged also to presume, under Article 129(g) of the Qanun-e-Shahadat Order, that the evidence being withheld is actually adverse to the owner/respondent withholding it?

Can a court, in 21st century, be expected to believe that a business between two disparate families of different nationalities, not even speaking the same language, conducted over three decades in, to say the least, tens of millions of dollars, was carried on in cash alone and not through any banking channels? Particularly, when there is not even any private register covering, day by day, the entire three decades with debit and credits entries? (These may yet be fabricated, but it seems too late now). And how many times did the late Sharif visit Qatar to look after (it seems imaginary) Qatari business?

In the absence of lawful and documented business, purporting to be worth billions, can one or two letters from a foreign national, who remains outside any tax regime, satisfy a court that lawful business has been conducted to lawfully generate the billions of rupees that were then used to acquire the assets in London? If such letters were to be accepted in aid of the Sharifs, would such letters not become an easy means to whiten financial proceeds of criminal activity and money laundering? In such an event, would the court not be allowing a convenient method to corrupt officials, drug barons, money launderers, merchants of illegal weapons and terrorist financiers to move about the world without having to fear prosecution by the FBR, NAB or FIA just because they are carrying Qatari letters in their briefcases? And might not the court inquire whether the lucrative LNG contracts with Qatar are a payback?

What was meant by the prime minister when he, on the floor of the National Assembly, emphatically asserted that the entire business was duly and scrupulously documented and had been placed with the Speaker and would also be made available to any judicial forum? Where is that record and why has it been withheld from the Supreme Court? Can Nawaz Sharif not be directed to produce all that record, failing which, to face the same consequences that were meted out Yusuf Raza Gilani?

Or did the record not exist in the first place because there had been no business whatever which generated the funds by which the assets in question (Apartments 16, 16A, 17, 17A) were acquired? And if there is no such proof are the assets not “proceeds of crime”?

How will the court interpret the statements of the defence and interior ministers, both intimate associates of the prime minister’s family, and of his wife that the assets were purchased in the 1990s, long before 2006, specially when the wife made the statement itself before 2006? How will the court reconcile the various discrepant statements of members of the Sharif family? Will the prime minister and his family be presumed to have discharged their burden to prove legitimate, documented and transparent money trail without having produced an iota of evidence to support it? 

The ownership of the flats has been admitted by the children of the “holder of public office”. The only questions that remain before the court now are: how, when, from whom, for how much, through what legitimate tax paid resources, and through what legitimate channels were they acquired? The Sharifs alone have to answer these questions. The court does not need the aid of any other agency or commission to get to the truth.