Rule of law on trial

Legal eye

Shahbaz Sharif wants across-the-board accountability as opposed to a singular focus on his family. He is not the first member of our power elite to demand so. When the Swiss cases against Asif Zardari came under renewed focus after the NRO case, the PPP wanted accountability to start from the time of Kane & Able. When Musharraf was to be tried for high treason, his proponents wanted accountability for molestation of the constitution to start from 1947. Our power elites know that if you cast the net wide enough, no one gets caught.

The Panama matter must not be used to persecute anyone. But if the probe is to start somewhere, the first family is the natural choice. There are two conceptual problems with the PML-N’s gripe. One, investigation and prosecution fall within the executive’s domain and thus the responsibility to initiate and continue across-the-board accountability, for now, stands delegated by the people of Pakistan to the PML-N. If that isn’t happening, it is due to the PML-N’s failure or refusal to do so. The PML-N’s bigwigs seem to forget that they are the government, not the opposition.

And two, the judiciary is overseeing the Panama JIT as an exception, not the rule. It has had to do so because our system of checks and balances is neither potent nor functional. Our power elites don’t like public officials exhibiting autonomy and independence. The JIT’s mannerism and exhibition of Hussain Nawaz being in the doghouse was wrong and counterproductive. But can we imagine a JIT not empowered and backed by the SC summoning and interrogating the PM’s children in a matter over which hangs his political fortunes?

This however doesn’t mean that, as the SC sits in trial over the Sharifs, it doesn’t itself stand trial before the public for the manner in which it discharges its role as a neutral arbiter responsible for upholding rule of law in Pakistan. There are identifiable challenges the SC is faced with.

One, getting to the truth backed by verifiable facts isn’t always easy. Our culture is defined by a morality wherein loyalty trumps integrity. Simply put, you are expected to lie and disregard principles, if required, to help someone with whom you share bonds of loyalty or love. Such personal morality chokes up our justice system with false testimony, making convictions harder. Can courts reverse the burden of proof or dilute the rights of the accused to inject efficiency into the justice system at the cost of its safety, to neutralise the lack of peoples’ qualms about lying?

Two, our collective consciousness is driven by rhetoric, intrigue, emotion and honour – instead of facts. Often we are more interested in why someone is doing something as opposed to what is being done. This has accelerated our drift to being a fact-free society. But in a country where civil-military power relations are an unfinished agenda and charges of corruption have been repeatedly used to cut civilians to size, who wants to remove the government and why becomes as significant as whether the government has committed the crimes it is accused of.

Three, the rules of the game in the realm of law are different from those in the realm of politics. A voter can decide that Nawaz Sharif isn’t clean in view of disclosures or omissions before him. But courts are constrained by demands of due process. They can’t rule on the guilt of someone on the basis of gut feeling. A vote of no confidence against a PM being driven by the vilest intent suffers from no infirmity. But in a court of law how and why a conclusion is reached is more important than the conclusion reached. That is what rule of law demands.

Since the Panama scandal broke, we have not heard a cogent account of how the Sharifs transferred enormous wealth outside Pakistan. Do PML-N loyalists, who defend NS and his kids unconditionally, not wonder about this? The PML-N is unabashedly alleging that anyone asking NS thorny questions about his wealth, where it came from and how it travelled outside Pakistan is Pakistan’s enemy, as this PM is the only politico committed and able to taking the country forward. This is poppycock. But can a judicial verdict be based on deductive logic?

And four, the history of rule of law in Pakistan is a discreditable one of using the law and its processes to strike deals between competing power elites, as opposed to defining the boundaries of right and wrong and holding the guilty to account. In the past when courts waded into the political thicket and produced partisan consequences, they did so at the expense of public faith in the neutrality and integrity of rule of law and the judicial process. That is why many see the law as a tool for the powerful to settle scores, and not as an instrument of justice.

The Swiss letter case or the many corruption scandals that the SC took cognizance of during the PPP’s rule weren’t taken to their logical conclusion to determine the guilt or innocence of the accused. The Musharraf case has been about civil-military relations and not subversion of the constitution. We have seen overthrow of governments being justified and we have seen the SC subsequently rule that it erred when it did so. Will Panama become another enterprise to cut NS to size without taking the issue of corruption to its logical conclusion?

As our investigators aren’t really focused on uncovering hard facts in order to establish the guilt of an accused on the basis of evidence, we find them relying on abusive interrogation, coerced admissions and humiliation through arrests or leaks as their preferred tools. All this helps conduct media trials but does not help with seeking convictions.

Leaking inadmissible testimony of an accused is fast becoming an established practice in high-profile cases. Do the Einsteins who come up with such ideas not realise that this helps the accused? Those who leaked Hussain’s screenshot, and the opposition’s attack dogs who shared it with relish, probably thought they were hurting NS. In reality, they were helping him legally and politically. All NS & Co need to do in the Panama case is to establish to reasonable people that the dice are loaded against them.

The PML-N is building its narrative on questions such as: Why did the SC refuse a judicial inquiry of the Panama matter when the government first requested it if it were to conclude later that the matter is fit for a judicially supervised investigation? Why did the Registrar SC initially reject the PTI’s petition, ­calling it frivolous, and could he have done so without the CJP’s nod? When the former CJP overrode the registrar’s objections and fixed the matter for hearing, did he take into account extraneous considerations such as the PTI’s threat to lockdown Islamabad?

Why would the SC feel the need to appoint representatives of ISI and MI within the JIT, constituted primarily to investigate alleged white-collar crimes by the PM? What kind of expertise do members of military-run intelligence outfits bring to the table? Who scrutinised and handpicked the civilian members of the JIT and why did the Registrar SC feel the need to fidget with the process to ensure that pre-selected employees from the SECP and SBP appear as nominees of the Chairman SECP and the Governor SBP?

NS & Co have an interest in discrediting the trial. If they succeed (and they have been given much ammunition to work with), whatever verdict the trial produces will hurt constitutionalism, rule of law and democracy in Pakistan. If an elected PM is to be fired by the SC on charges of corruption, it must be done in a manner different from how it used to be done in the 90s – ie through a process beyond reproach at least in the eyes of the wide majority of fair-minded Pakistanis who have no unconditional allegiance to any party.

The writer is a lawyer based in Islamabad.

Email: sattar@post.harvard.edu