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Burden of proof

July 17, 2018

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ONE shouldn’t be too harsh on the accountability court’s Justice Muhammad Bashir for writing an inadequate judgement. In earlier analyses in this and other publications, I have pointed out that the Supreme Court too has authored judgements based on misreading of record (eg minority judgement in the Panama case), violation of centuries of jurisprudence on mens rea (read the majority judgement in the Panama case), executive amnesty overriding constitutional stipulations (Imran Khan’s case), inconsistent rulings in similar cases (as noted by Justice Faiz Isa as well) and violation of the rule regarding conflict of interest.

This only suggests that our judges are human and prone to error, not bad faith.

The good thing, however, is that Justice Bashir’s judgement can actually be corrected in appeal, unlike when the SC assumes suo motu jurisdiction — those errors cannot be easily corrected, no matter how glaring and painful. Which is why one recommends this jurisdiction to be exercised sparingly.

While it is for the appellate court to assess the errors in the accountability court ruling (which are too numerous to be listed), what may be noted here is one glaring omission in the prosecution of the case. As we know, every accused has the right to “fair trial and due process” under Article 10-A of the Constitution. This means that the burden is on the prosecution to prove its case beyond reasonable doubt.

How watertight was the prosecution’s case in the Avenfield trial?

Exceptionally, where the charge is that the accused or any other person on his behalf holds property “disproportionate to known source of income”, which is the allegation against former prime minister Nawaz Sharif, the burden is shifted to the accused to satisfy the court that the property was not acquired through corrupt means. However, there is plenty of case law, including by the SC, that for the burden to shift to the accused, the prosecution has first to prove the value of the property in question, the known sources of income of the accused, and a clear disconnect between the two.

The prosecution alleges that the Avenfield apartments were acquired between 1993 and 1996. The accused have their own version on how these were acquired, but even if we are to dismiss that entirely, the prosecution was still required to prove the value of these apartments at the time it alleges they were acquired in the 1990s.

Remarkably, the judgement shows no attempt by the prosecution to establish that value — even though, without establishing such value, and without demonstrating a discrepancy between that and sources of income of the accused, it is simply not possible to shift the burden on to the accused, or to prove the case against him. This is so elementary that it is perplexing that the prosecution made no effort in this regard. How could they commit such a basic error?

In his article ‘Penthouse Pirates’ in The Mail on Sunday, David Rose provides a clue. This is meant to be extremely damaging to the Sharif family, and was paraded so by many publications. This is what Rose says: “Avenfield is where Pakistan’s super-rich former prime minister, Nawaz Sharif, has lived when in London since 1993, knocking four luxury flats together to make a single mansion, now worth at least £7 million.” But if these flats are worth £7m today, after renovations, what would their value have been in 1993, when they were allegedly acquired?

It can be verified that prices in central London have increased nearly seven-fold since 1993-96. This means that the value of the flats was likely hardly £1m at the time they were allegedly acquired. At the then ex­­change rate, this comes to Rs4.5 crore. Was that so beyond the means of an industrial family like the Sharifs?

This then explains why the prosecution never attempted to establish the value of these flats. Doing so would destroy the carefully crafted narrative, so popular in certain quarters, that the Sharifs have amassed wealth amounting to $3 billion in UK and elsewhere. It would also have defeated the case at hand.

A word about that nonsensical narrative as well.

It is noteworthy that the only properties disclosed in the Panama Papers as belonging to the Sharifs are the four Avenfield flats. Had there been other properties, it is reasonable to assume that they too would be held through Mossack Fonseca, in which case these would have come out as well. The former prime minister’s family does of course hold other properties in London, and in Saudi Arabia, but it is they who revealed those properties. These are not part of the Panama leaks.

One therefore wonders whether the Avenfield flats truly represent the tip of the iceberg, as some would like to believe, or if it is in fact our discourse that needs to be brought within rational limits.

The author is a lawyer based in Lahore.

Published in Dawn, July 17th, 2018