After reading the subject judgement, I felt that indeed it was a judgement that may be remembered for a long time to come. But it will be so remembered in parts but for very different reasons. The judgements of two judges will perhaps be remembered for stripping the PM and his family naked by tearing off the cloaks of falsehood behind which they had constructed their defense. The judgements of two other judges will be remembered for being apologists for the Sharif family. And the judgement of the fifth judge will be remembered for excoriating the stance of the PM and his family in his findings, but then giving a judgement at complete variance from these findings i.e for having seen a spade but then refusing to call it thus. On the face of it, it seems that it is this fifth judge who made a shift.
On two issues all five judges seem mostly to be of one mind i.e that the explanations proffered by the Sharif family for various acts of commission or omission were woefully frail and not credit worthy; and that the court was not competent to pass any judgement on issues of criminality of the respondents, but was competent to do so on issues of morality i.e the civil aspects of the case/ pleas agitated against this family.
A few paras from the judgement of Mr Justice Ejaz Afzal Khan will suffice to elucidate the position of the majority opinion in this case. The important portions of the same will be in inverted commas, where I have quoted from his judgement. The reader must know that in what follows, wherever “respondent No.1” is mentioned, the reference is to Nawaz Sharif.
17. In a proceeding under article 184[3] of the Constitution, a person cannot be considered dishonest if his assets appear to be disproportionate to his means of income etc. ” A reading of Article 4 of the Constitution would reveal that no person shall be compelled to do that which the law does not require him to do. While a reading of Articles 62 and 63 of the Constitution and Section 99 of ROPA reveal that none of them requires any member of the Parliament to account for his assets or those of his dependents even if they are disproportionate to his known means of income.”
My observation on the above: so far so good. Now let’s see what follows.
“21.Now we take up the question whether a case for disqualification of respondent No.1 in terms of Article 62[1] [f] of the Constitution is spelt out by the speeches he delivered inside and outside the Parliament and whether such speeches in view of the provisions contained in Article 66 of the Constitution could be used to his detriment. The case of the petitioners is that speeches delivered by respondent No.1 inside and outside the Parliament are false because of their being in conflict with the statements of respondents No.7 and 8 and contradictory to his own stance taken in his concise statement and that the privilege in terms of Article 66 of the Constitution is not available to him when the matter addressed in his speech delivered in Parliament was essentially personal. But mere contradiction between the speeches of respondent No.1 and statements of respondents No.7 and 8 does not prove any of his speeches false or untrue unless it is determined after examining and cross examining both of them that their statements are correct and true. Where it is not determined that statements of respondent No.7 and 8 are correct and true, no falsity could be attributed to the speeches of respondent No.1. If at all the speeches of respondent No.1 are sought to be used to incriminate him for declaring that he is not honest and ameen he has to be confronted therewith. Where no effort was made to prove the statements of respondents No.7 and 8 to be true and correct, nor was respondent No.1 confronted with his speeches, it would be against the cannons of evidence to use such speeches against him. Once we hold that neither of the speeches of respondent No.1 could be used against him, the question of availability of privilege under Article 66 of the Constitution shall become irrelevant.”
“23……….”However sufficient material as highlighted in para 16 above, has surfaced on the record which prima facie shows that respondent No.1, his dependents and benamidars acquired assets in early nineties and thereafter which being disproportionate to his known means of income call for a thorough investigation.”
The judge then goes on to say that this further investigation would best be done by NAB, but because Chairman NAB is either indifferent or unwilling to do this, a JIT should be formed.
Observations:
a. It stands to reason that where his children’s statements differ from those of Nawaz Sharif, the latter cant be accused of falsity. But the judge has completely ignored the prayer of the petitioners that his own address to the Parliament, his address to the nation, and his concise statement to the Supreme Court itself differ from each other, and has made only an oblique ruling on this. Now this can easily be pointed out by any layman, but how come a Judge has not been able to see this. To me this appears to be an omission brought on by deliberate haze/amnesia. And what do you think brought this about? I think I have a pretty good idea about this, but would like to keep my own counsel on this.
b.When Nawaz Sharif was making his statements to the Parliament, to the people of Pakistan, and to the court, these were no ordinary or casual statements. He was attempting to remove a taint from his name which formally got attached to him in wake of the Panama papers being exposed worldwide. In short his were statements which were given after great deliberation, and they were shown to be lies e.g that he had all the records to prove that all transactions which led to the purchase of the flats in London were bona fide and above board, but when the time came to submit these records to the court, despite the exhortations of the court,he could not submit even a shred of such evidence. Now where is the need in this case to “confront” Nawaz Sharif and “cross examine” him as argued by the judge? But this point has been pretty well put to rest in the judgement of Mr Justice Khosa, which I will quote presently.
But before I go further, I need to quote Mr Justice Azmat Saeed on a concept which is quite novel for me:: “30…….There can be no manner of doubt that the term ‘honest’ as employed in Article 62[1][f] refers to legal honesty, an objective concept, and not mere moral or ethical honesty, which is subjective.”
Observation: Now this one is a real stretch. For one thing, the term “objective concept” is a contradiction in terms. When one talks of a “concept”, how does one bracket it with objectivity or subjectivity? If it is a concept, to my way of thinking, it essentially will be subjective. And pray what is “legal honesty” when detached from its moral and ethical moorings? It is so patently obvious that the judge here is trying to prepare grounds to categorize the telling of lies as something “subjective” i.e to let Nawaz Sharif off the hook. A lie is not something concrete which one can see or touch or examine under a microscope i.e it is not “objective”. And indeed Nawaz Sharif would have been off the hook but for the fact that he volunteered information in order to clear his name three times, and each time, his explanation was different, which means that at least two of his explanations, if not flat out lies, were at least not the whole truth.
After reading Mr Justice Azmat Saeed’s “concept” of honesty, the incredulous among us are given some relief by Mr Justice Khosa’s observation:” There are may definitions of the word ‘honest’ but deliberate withholding or suppression of truth is not one of them and the same is in fact an antithesis of honesty.” And further in para 122, without letting us know which judge/s he has in mind, he has a very interesting quote: ” The law is sometimes called an ass but the judge should, as far as it is possible, try not to become one.”
In para 83 of his judgement Mr Justice Khosa has this very exhaustive chart which lists the contractions in the statements of the Sharif family, as its members bob and weave to present a plausible and coherent narrative of how their business migrated from Pakistan to Dubai, to Jeddah to London, and is then changed to fit Qatar into the narrative. He then concludes with the observation: ” The material referred to above [i.e the chart] is not controverted by respondent No.1 or his children and the same material is in fact also relied upon by the petitioners. None of the parties has asked us to record any evidence or to call for any evidence. No detailed assessment of such material is required because the material speaks for itself. Res ipsa loqitor [the thing speaks for itself]. Even a layman can appreciate, and one does not have to be a lawman to conclude that what has been told to the nation, the National Assembly or even this court about how the relevent properties in London had been acquired was not the truth. A pedestrian in Pakistan Chowk, Dera Ghazi Khan [a counterpart of Lord Denning’s man on the Clapham omnibus] may not have any difficulty in reaching that conclusion.” [i.e that Nawaz Sharif had lied to the nation, the Parliament, and the Supreme Court to clear his name of various criminal allegations.]
If the reader was to read the judgement of Mr Justice Ijaz ul Ahsan, from para 39, right down to the end, one would find there a most damning indictment of the Sharif family, NAB, FIA, and FBR etc. But his final judgement is at complete variance with his observations. Had he stood with Justices Khosa and Gulzar, Pakistan would today have been rid of the cancer eating into its vitals for so many years. It is obvious that spiritually he was on one side, but perhaps, materially he was on the other –the side which, despite all the evidence to the contrary, did not have it in themselves to see the patent and very virulent dishonesty of Nawaz Sharif, and have thus sown the seeds of further turmoil and uncertainty in life of a thoroughly plundered and most unfortunate country.
And now a few words on whether Mr Justice Khosa was justified by implying that Nawaz Sharif was the Godfather. To determine this one needs to be clear about who is a Godfather, and what he does.
A Godfather is the head of a criminal enterprise, who lives above the law, and has assets which are massive and which cannot be accounted for. He subverts the police, buys the politicians, and corrupts the judiciary, and uses government servants in the furtherance of his criminal enterprise, all the while making certain that one of his children will one day inherit the same i.e in short, he has in his pocket all such individuals or institutions which can hold him to account, and strives to find immortality through his progeny who are first trained, and then placed to take his criminality forward. He does all this by maintaining a large gang of lackeys and hoodlums.
Now examine Nawaz Sharif against this list and tick mark all the boxes and you will know, if you still have any doubts about, whether or not Mr Justice Khosa’s oblique reference was correct in every detail. The only thing most of us did not really know was the extent to which this man had subverted the judiciary very early on. Mr Justice Khosa has done a signal service to the nation by putting much of this material together in his judgement. Interested readers are invited to read paragraphs 100,101,128,129, and 130 of his judgement. These paragraphs detail, not the entire gamut of his multifarious criminalities, for that will be impossible to do, but concentrate on the few times when the law finally managed to catch up with him, but using Prime Ministerial powers, how he repeatedly got out of the clutches of the law.
P.S For me the miracle of the Supreme Court Judgement in the Panama Case remains the wonder that people like Mr Justice Khosa and Mr Justice Gulzar, survived the imperfections of a very corrupt system to reach the very top of their profession. Without Panama we would never have known this, and they would probably have walked into the sunset unsung and unheralded.
