ISLAMABAD: A Supreme Court judge on Monday identified “honesty” as the real issue in the Panama Papers case, more so than the Sharifs’ purchase of four London flats or the time of their purchase.
“The real issue is that all statements made by Prime Minister Nawaz Sharif — in his address to the nation as well as the parliament — contradict each other,” regretted Justice Asif Saeed Khosa, wondering whether the person making the statements was not being honest to the people, the National Assembly and even the apex court.
Justice Khosa heads a five-judge Supreme Court bench that is hearing petitions seeking the disqualification of the prime minister over investments made by his family members in offshore companies.
Instead of the smaller court room, Monday’s hearing was held in a much calmer and spacious Courtroom No. 1, where PTI chief Imran Khan and Secretary General Jahangir Tareen were present along with other party members as usual. In attendance from the government side were Information Minister Mariyum Aurengzeb, Adviser Zafarullah Khan, Talal Chaudhry and Daniyal Aziz.
But Justice Sheikh Azmat Saeed, pointing towards PTI’s Advocate Naeem Bokhari, emphasised the need for caution in deciding a disqualification case under Articles 62 and 63 of the Constitution on the basis of a statement made by the holder of a public office, which later turned out to be false. “If we start disqualifying people under this pretext, no one will be spared, not even your clients,” the judge observed.
But Justice Khosa explained why the bench was giving so much time to the case: the court understands the consequence of its decision — a decision that should be reached while striking a balance between satisfying the requirements of law on one hand and interpreting law in such a way that everybody should not be disqualified.
“This case is the first of its kind that has come up,” Justice Khosa noted, adding that this was the reason why the court did not want to rush into a decision.
“We know the gravity of a declaration by the court and its affect for both the parties, saying that someone was not honest. But we have to lay down parameters, otherwise, except for the Jamaat-i-Islami chief Sirajul Haq, no one will survive,” Justice Khosa observed.
“The ultimate objective of this court is to get to the whole truth,” observed Justice Ijazul Ahsan, adding that it was understandable that the counsel cannot answer every question because the gaps have to be filled by the respondents (the prime minister and his family).
Mr Bokhari, however, argued that people’s money have been laundered and appropriated to purchase the London flats, adding that the prime minister was answerable for the false statements he had made before the National Assembly.
The PTI counsel described the Nov 5, 2016, Qatari letter as an attempt on the part of the prime minister to pad up his defence. In his address to the nation on April 5, 2016, he identified the sale of the Jeddah factory as the source of finances for his son’s business. But the prime minister never stated that the money was invested in Qatar. In his speech to parliament, he asserted that the record regarding the sale of Jeddah factory was available, but nothing had been placed on record as of yet.
On Monday, the Supreme Court spent considerable time discussing the statement of incumbent Finance Minister Ishaq Dar, recorded before a magistrate as an approver in the Rs3.4 billion Hudabiya Paper Mills default reference by the National Accountability Bureau (NAB). The statement made under Section 164 of the Criminal Procedure Code (CrPC) was recorded on April 25, 2000.
Later, the Sharif family had challenged the same before the Lahore High Court, where Justice Sardar Shamim quashed the reference on March 11, 2014, explaining that if re-investigation was allowed against the Sharif family, it will provide an opportunity to investigators to pad up loopholes in their case.
At this, Justice Ejaz Afzal Khan observed that the NAB chairman showed connivance by not moving an appeal before the Supreme Court against the high court’s decision. But by ordering the NAB chairman to file a belated appeal, the court cannot arrogate itself to sit in appeal against the high court judgement, the judge said.
Was not it obligatory for some authority or agency to look into the details of the matter and ascertain whether the allegations against the Sharif family were wrong or right, Justice Khosa asked. He said the Supreme Court had held that the finality of the Tauqir Sadiq Ogra corruption case by the Islamabad High Court was not an obstacle for the Supreme Court to take up the matter again under Article 184(3) of the Constitution.
He recalled that the Supreme Court had given a judgement that a statement under Section 164 had to be recorded before a magistrate and can be used as evidence by any forum.
But Justice Khan recalled a Federal Shariat Court judgement, in which it was held that confessions in Hadd cases should be recorded before the competent court and not before a magistrate.
Mr Bokhari argued that he was seeking court directions that the NAB chairman, by not filing the appeal against the high court judgement, had committed dereliction of duty. Therefore, a reference should be moved against him before the Supreme Judicial Council (SJC).
Justice Khosa reminded the counsel that though the reference was quashed, the allegations still survived. Therefore the value and worth of the statement of Ishaq Dar under Section 164 still holds the field, adding that the quashing of the reference does not mean that the accused were acquitted.
At this point, Justice Khan quipped: “Provided we ignore the judgement of the referee judge”.
“I can anticipate that if we call the NAB chairman and inform him that the court was sending a reference [against him] before the SJC, he may himself volunteer to hold a re-investigation,” Justice Khosa observed.
The judge asked then the counsel to file an application before the NAB chairman, and in case it was rejected, he could move an appeal and take his chances.
During the proceedings, Justice Khan wondered how, when the entire family business was run by Mian Sharif, could the prime minister recall the whole money trail.
But Justice Khosa referred to three different stories relating to the Sharifs’ investment in Dubai, Jeddah, Qatar, which then ended up in London and said that if all the money in the three investments belonged to Mian Sharif, the money that travelled to London would ultimately go to the prime minister under the law of inheritance.
Published in Dawn January 10th, 2017