Legal eye: Time to step down

The JIT report is itself the staunchest argument in support of procedural justice as a means to producing substantive justice. The three-member majority decision in the Panama matter was right in ordering a court-supervised investigation into allegations against the PM and his family. The JIT report has deciphered and punctured the Sharif explanations and narrative. Now the Sharifs will have their chance to challenge the JIT report before the SC. Courts must decide cases not on the basis of conjecture but truth. And truth is what is backed by verifiable facts.

We haven’t heard coherent criticism on the content of the JIT report from PML-N so far. The ruling party is making three main arguments. One, the JIT was biased in view of its composition; it adopted a methodology that was unfair (it didn’t interview the Qatari); and it bent over backwards to make the Sharifs look bad. Two, selective Nawaz-focused accountability is a witch-hunt meant to demonise an elected PM and democracy. And three, there are no allegations of corruption or abuse of office against NS and thus no reason for him to resign.

The arguments are wanting. Granted, the election of JIT members stirred controversy and the involvement of ISI and MI was unnecessary. Let’s assume the JIT was biased and existed for the sole purpose of hurting NS. What it did was place the Sharif explanations under a microscope and poke holes in them. If the Sharif story was watertight, could a biased JIT introduce contradictions in it? The role of investigation is to unveil facts. Did the JIT manufacture facts? If it did, the truth will counter such concoction and the Sharifs will have their opportunity next week.

The problem with cooked stories is that they have loose ends. The original story presented by the Sharifs has multiple components, each plausible in theory but, put together, weaving an unbelievable story. This fantastic tale was crafted such that to explain ownership of the London flats, the Sharifs needed no money trail, the transfer of flats was backed by no documents and the only testimonies required were those of family members and their Qatari benefactor. But to date there has been no credible explanation of how their enormous wealth was transferred out of Pakistan.

The witch-hunt argument is not one for suspending accountability but for expanding it. It’s true that the history of accountability in Pakistan is a history of putting out-of-favour politicos in the dock. There is a grand understanding between power elites not to upset the applecart. The ‘establishment’ breaches this understanding when faced with politicos gone rouge. Unlike politicos, the establishment has the advantage that institutions have: the blame of past misdeeds can be passed on to individuals that controlled it at the given time.

But what prevents politicos from resiling from the crooked understanding? Why do they remember that judges and generals have never been held to account only when under fire? When the PPP was making hay in power, the PML-N made much noise about its resolve to bring the corrupt to book. Why did the resolve collapse when in power? Why did we see no accountability legislation aimed at setting up an effective anti-graft body to replace NAB? Has Pakistan become corruption free? Where do all rents go that citizens cough up daily to get services from the state?

The third argument – that there is no concrete allegation of which particular contract NS made money in – is also lame. Our original anti-corruption law is as old as Pakistan, under which a public servant is guilty of criminal misconduct if he or his dependents are in possession of property disproportionate to his known sources of income. A like provision is part of the NAB Ordinance. In view of the nature of the offense, placing the burden on the public servant to give a money trail for his assets makes abundant sense. The only problem is that this law is treated as dead letter.

It is not easy to establish that a public servant has taken a bribe, as the person giving the bribe, even if he deems it extortion, is also committing an offence. (We are unable to hold patwaris and thanedars to account, let alone higher officials). Thus the provision that a public servant and his assets are subject to audit at all times and any such servant living beyond his means is liable. The onus is placed on a public servant to establish that his assets are legitimate and he isn’t stealing from the people on whose behalf he exercises state power.

Living beyond his means is the charge NS is faced with. Here is a family that prides itself on having inheriting riches and growing them further through private businesses. Its lifestyle should be a source of envy for the lesser Middle Eastern royals. In that context, notwithstanding the exaggerated price tag put on the London flats by opposition leaders, it is truly amazing that one of the wealthiest families of Pakistan doesn’t have documented resources (‘white money’ as we call it) to justify the ownership of a few flats in the UK.

NS is now being asked to step down by many who have cautioned that an elected PM being booted out by court without a trial on a tentative assessment of allegations would produce bad jurisprudence and hurt rule of law and democracy, for the following reasons: One, while there is no legal obligation for the PM to step down, his failure to establish before the SC and JIT that no reasonable grounds exist to suspect him of dishonesty triggers the ethical obligation to step aside and not bring the PM Office into disrepute. Legitimacy is acquired through ballot, but can be lost when in office even without a conviction.

Two, political accountability and legal accountability run hand-in-hand in a democracy. The best-case scenario for the Sharifs after the JIT report seems to be the SC directing that charges be framed and the PM be tried before an accountability court. Imagine a sitting PM running around courts begging for the concession of bail to be granted to him to avoid being arrested.

And three, as a flag-bearer of democracy NS must ask himself whether he is helping or hurting democracy at this point. We have an army chief who is just settling in and a chief justice who is neither Iftikhar Chaudhry nor a judge who can be accused of any partisan agenda. But let’s assume for a second that the khakis are conspiring against NS and working with the court. How will any conspiracy come to fruition if NS voluntarily steps down to face the impending trial and lets the PML-N government complete its tenure, leaving no room for mayhem or the ‘establishment’ to step in?

Is NS a leader who sees democracy and his party as things larger than vehicles to promote personal ambition? Senior PML-N leaders being paraded before the media to call the JIT names and cry conspiracy without uttering a word of substance that could appeal to anyone other than the PML-N’s core support base makes such a sorry sight. Are political parties mere alter egos of their heads? Can a cabinet member (or anyone for that matter) vouch for the financial integrity of anyone other than himself? Is sycophancy and servitude in the name of party loyalty not the bane of our democracy?

But even if NS refuses to resign, he must not be sacked without a trial. What the JIT has produced are allegations backed by material that is being contested by the Sharifs. The veracity of such material can only be tested through a trial. If the SC could throw its weight behind the JIT and have a report produced in 60 days, it can also have the best prosecutors prosecute the Sharifs before an accountability court in another 60. If NS is guilty he must be convicted, not just disqualified. But he is head of the executive and must not be ousted on tentative assessments.

Email: sattar@post.harvard.edu

The writer is a lawyer based in Islamabad.