The Supreme Court still has some damning things to say regarding Panamagate

"If fortune has throned, crowned and sceptered [Nawaz] to rule ... his conduct should be above board and impeccable".
Published November 7, 2017

The Supreme Court's detailed judgement on why it feels none of the review petitions filed by Nawaz Sharif & Co against its seismic Panama Papers verdict were worthy of consideration is methodical — but also reveals a moralising streak.

At more than one point, the floodgates of the five-member bench's apparent frustration at the way the case has been dissected and discussed seem to burst open, and they collectively admonish the former prime minister for not being fully forthright in a case of such monumental proportions.

"... We could not have shut our eyes when an asset of the petitioner [...] admitted by him to be his in no uncertain terms, was not found to have been disclosed in his nomination papers," the judgement states.

"Nor could have we let him get away with it simply because he happened to be the prime minister of the country."

And, likely because it has been authored by the effusive Justice Asif Saeed Khosa, it rollicks on with some highly quotable phrases:

"... To our dismay and disappointment, the petitioner has not been fair and forthright in answering any of the queries made during the course of hearing. He never came forth with the whole truth. He tried to fool the people inside and outside the Parliament. He even tried to fool the [Supreme] Court without realizing that 'you can fool all the people for some of the time, some of the people all the time but you cannot fool all the people all the time.'

"Refuge in evasive, equivocal and non committal reply does not help always. If fortune has throned, crowned and sceptered him to rule the country, his conduct should be above board and impeccable.

"Whatever he does or says must be res ipsa loquitur — it should speak for itself. Resignation rather than prevarication in ambiguous terms is [a] more honourable exit if and when anything secretly carried under the sanctimonious gown of leadership drops and gets sighted.

"Since the prime minister of the country is thought to be the ethos personified of the nation he represents at national and international level, denying an asset established or defending a trust deed written in 2006 in a font becoming commercial in 2007 is below his dignity and decorum of the office he holds."

This particular litany ends with a lament; "an Urdu verse" that "may perhaps explain the feeling of a follower about the leader":

ادھر ا ُدھر کی نہ بات کر یہ بتا کہ قافلہ کیوں لٹا

مجھے راہزنوں سے گلہ نہیں تیری رہبری کا سوال ہے

(Don't speak to me of why the caravan was robbed/ I bear no grudge for the bandit, but your capacity to lead I doubt)

Elsewhere, the court remarks that Nawaz's many omissions are "not something to be looked at with a casual eye and outlook. It is not only a legal duty [to declare your assets honestly] but a qualifying test for the candidates who in the later days preside over the destiny of the people. This duty has to be performed without a taint of misrepresentation. This test has to be qualified without resorting to unfair means."

"Any concession at this stage or any leniency to the candidates or the person elected would be a prelude to a catastrophe in politics, which has already had enough of it."


"Since it is already touching the extreme, extreme measures have to be taken. The culture of passing the candidates by granting grace marks has not delivered the goods. It has rather corrupted the people and corrupted the system."

The more straightforward sections of the judgement detail the court's systematic dismissals of the objections raised by Sharif & Co in public gatherings and in court.

The following are the objections raised by the Sharif team and the court's own reasoning on why they do not hold up to scrutiny.

1. The July 28 verdict should have come from a three-member bench, rather than a five-member bench.

The Supreme Court acknowledges that the July 28 verdict had created confusion over how the full five-member bench of the Supreme Court could issue the final order when two of its judges had already given their own judgement much earlier, in their dissenting note to the interim order issued on April 20.

However, the argument was merely academic, the Supreme Court says, and the petitioners themselves dropped it when told that adopting this line of argument wouldn't change the outcome of the case.

"[...] When during the hearing before the five-member bench it was pointed out that the three-member bench judgment has to prevail and hold the field, if maintained and that the objection being academic would not have much effect, the learned Sr. ASCs and ASC [lawyers] for the petitioners opted not to press the review petitions filed before the three-member bench, which were disposed of accordingly," the judgement revealed.

2. Nawaz Sharif's salary was never withdrawn and therefore cannot be considered an asset.

The Supreme Court also revisits its reasoning on why it continues to consider Nawaz Sharif's contentious salary an 'asset'. The court says it had initially considered the salary an asset on the basis of the following four reasons:

  • It was contractually agreed to;

  • It was not a salary which had yet to accrue, rather it had accrued and accumulated over a period of six and a half years;

  • There was no written or oral proof that the salary was not going to be collected by Nawaz Sharif;

  • There was no written or oral proof that Nawaz Sharif could not have withdrawn the salary.

It also gives reasons as to why it felt justified in taking that stance:

  • Nawaz Sharif himself told the court that he had told his son that he would not claim a salary when the decision to wind up the company was taken in January 2013.

    To the court, this "unmistakably showed that the salary thus accrued and accumulated till January 2013 was all along the asset of the petitioner; that the power to withdraw or waive it lay exclusively with the petitioner and that he instead of withdrawing it waived it in favour of the company."

  • Though the salary ceased to be an asset from January 2013 (when the company was shuttered) "it remained an asset till then and the more so on 30th June, 2012 which is the crucial date in terms of Section 12(2)(f) of ROPA," the court notes. "[...] It was an asset out and out. It was thus required to be disclosed in the nomination papers of the petitioner for the 2013 General Election."

  • The court says that even if it had ignored the definition of the word "asset" it used in the July 28 verdict — "the very admission of the petitioner that he waived the salary so accrued and accumulated in January, 2013 in favour of the company speaks for itself."

    "Had there been no admission we would not have stepped in as we did not step in when the document issued by Mossack Fonseca showing respondent No. 6 [Maryam Nawaz] as the beneficial owner of the Avenfield apartments, was disputed by her. We also did not step in when many other documents disclosing several other assets purportedly owned by the children of the petitioner were disputed."

3. The 'missing' assets were 'omitted' from the nomination papers because of a mistake.

The Supreme Court is still having none of the argument that Nawaz Sharif had failed to disclose the salary 'by mistake'.

"The argument [...] would have been tenable had the petitioner been a novice or a new entrant in business and politics," begins the Supreme Court's take on this line of reasoning. "But where he has been neck deep in business and politics ever since early '80s, it is unbelievable that he did not understand the simple principle of accounting that his accrued and accumulated salary of six and a half years was his asset and liability of the company he was an employee of."

"Even otherwise, this argument cannot be given much weight when it has not been pleaded by the petitioner that the omission to mention the asset was accidental, inadvertent or unintentional."

4. Nawaz was not given a fair chance to defend himself

The Supreme Court rubbishes this assertion, saying that Nawaz Sharif was given a fair chance to explain himself and vindicate his position: "[...] we not only gave him a fair chance to vindicate his position before this court, heard him at length for almost two days but also accepted whatever he stated about work permit, his employment contract with Capital FZE Jabal Ali, his position as the chairman of the board and his entitlement to salary which according to him was not withdrawn."

Hence, "the mere fact that we did not agree with the petitioner when he stated that his unwithdrawn salary is not an asset would not amount to denial of a fair chance to vindicate his position."

5. NAB was unconstitutionally dragged into this mess.

The Supreme Court also dismisses the argument that it transgressed legal boundaries by ordering the National Accountability Bureau (NAB) to file references against Sharif & Co.

"What necessitated the issuance of these directions to the NAB has already been dealt with in paragraph 19 of the judgment dated 20th April, 2017 authored by one of us (Ejaz Afzal Khan)," it recalls before quoting his reasoning why NAB should be the one to investigate the allegations against the Sharifs.

5. The Supreme Court has encroached on NAB's authority by ordering that references be filed

To this argument, the Supreme court says that it may have been given some weight "had there been no institutional capture, seizure and subjugation of all the important institutions of the state, including NAB, the Election Commission of Pakistan, the Federal Board of Revenue, the State Bank of Pakistan, the National Bank of Pakistan and the Intelligence Bureau through the cronies and collaborators of the person at the peak, as has been evidenced during the course of hearing."

"We thus, with our eyes open and minds awake, would not let everything go into the hands of the cronies and collaborators for being taken to a dead end. Once things have been streamlined, they have to be taken to their logical conclusion."

6. In praising the JIT in its July 28 judgement and setting a six-month deadline, the Supreme Court had prejudiced the accountability courts' hearing of the Sharif references.

The Supreme Court has dismissed the arguments on the grounds that:

a. It says it never said whatever 'evidence' the JIT had collected had its unambiguous approval and saying so was wrong.

"The trial court in any case would be at liberty to appraise evidence including the material collected by the JIT according to the principles of the law of evidence without being influenced by any of our observations."

b. It says the purpose of setting a timeline for the references was not to prejudice the trial but to expedite the conclusion of the case, "which more often than not has been extended even in the past by this court, if the trial was delayed by any hardship or anything imponderable."