Debating the Verdict

Spearhead Analysis – 31.07.2017

By Xenia Rasul Khan Mahsud
Research Analyst, Spearhead Research

There are many ways in which people responded to the Panama verdict: some saw it as a victory for Pakistan, some for their political party, optimists and hopefuls threw on their rose tinted glasses and woke up to a new Pakistan free of all its demons. But then there are the critics, those who see the decision of the five-member bench as one dotted with loopholes, shriveled and shrunken down to the failure of Nawaz Sharif to declare his un-withdrawn salary of AED 10, 000 dirhams from Capital FZE in his 2013 nomination papers, grounds that the critics argue are insufficient to be deemed as ‘material particular’ – making a statement that is false or misleading.

The whole argument being this:

According to the law, there are two main systems of accounting, both acceptable under Pakistani law. One being where companies opt for the ‘accrual basis’ of accounting, under which they record the money receivable as income, whether it is received or not, and the money payable, paid or not, as a part of the expenses incurred. The second system, one that is often used by individuals is the cash-basis system under which the actual expenses incurred as well as the income received are only recorded, while those pending or not received yet are excluded from the equation.

And that is the loophole that the critics are pointing towards. The reason that Nawaz Sharif does not “understand the grounds for…[his] dismissal” is because he had claimed that he never received his salary from Capital FZE and hence it did not constitute as income since he hadn’t received it, therefore, he wasn’t liable to declare it. And since the Constitution does not forbid the prime minister from holding two offices of profit at the same time, those supporting Nawaz have hypothesized the whole judicial process and consequent decision as a conspiracy against their ‘political martyr’ of a leader.

The plethora of charges that stood against Nawaz and his family– the Calibri scandal and the abuse of power, forging documents and withholding them, the corruption charges and the money laundering – aren’t the ones that led to his dismissal according to the verdict of the Supreme Court. Nawaz got the pink slip under articles regarded as the legacy of Zia, ones that if the PML-N could foresee the future wouldn’t have opposed when the PPP was trying to make amendments to, and articles that could send many parliamentarians packing. The verdict could possibly set off an era of political rivalries where the court will become the battlefield, and the rule of law and constitution the weapon – functions that stand quite opposite to what the two are meant for.

If this happens, there’s a chance that parliamentarians might respond by coming together and proposing a constitutional amendments seeking to curtail the scope of powers under Article 62 and 63.

Moot point

The response to this skepticism, those viewing the verdict as a setback to democracy and the judiciary, is this:

In legal terms, if a law is on the books, there is no reason for the Supreme Court to step back from invoking it, and needlessly engaging in political debate regarding the historical baggage that the articles represent. According to critics of the view that the Supreme Court should have based its verdict on corruption charges primarily, they emphasize that the Supreme Court is not a trial court even under its original jurisdiction 184(3). Keeping in mind that the extensive record available points to definite guilt, the Supreme Court did what was required of it and gave direction, support, and power to the bodies that will further investigate the issue. This is clarified in Justice Ijaz-ul-Ahsan’s statement where he says:

“…such conviction can only be recorded by an Accountability Court under the NAO, after a proper trial, recording evidence and granting due process rights guaranteed by the Constitution to the accused. To transplant the powers of the Accountability Court and to attach such powers to the jurisdiction of this Court under Article 184(3) of the Constitution has neither been prayed for by the petitioners nor can it be, in our opinion, done without stretching the letter of the law and the scheme of the Constitution”

While this holds true, the loophole of Nawaz not declaring his income because he hadn’t received it still exists, and is one that will be used by the PML-N as rhetoric in the next elections. Nawaz is already calling himself a “jawaan who is willing to sacrifice himself for the country”, one that has only accepted the decision because he supports the democratic process – not because he agrees with it.

While it’s still a question whether the judgment means that Nawaz will be banned from politics, it’s safe to say that the Sharif dynasty will not cease to exist. With the party pushing Shahbaz Sharif to take over the prime minister’s office, first by allowing Shahid Khaqan Abbasi to take over as interim prime minister till Shahbaz is elected to parliament and takes over the big seat, it is evident that the dynasty will continue with shameless confidence.

Times like these the PPP slogan seems more apt for the PML-N: “tum kitney Sharif maaro ge, har ghar say Sharif niklay ga”.