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Guilty without proof

July 20, 2018

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“His own opinion was his law” — Shakespeare

DEMOCRACY without legal accountability can become aimless but defective legal accountability can be destructive for both democracy and accountability. This is precisely why the recent judgement of July 6, 2018, in the Avenfield Apartments case convicting Nawaz Sharif, Maryam Nawaz and retired captain Safdar is so critically important.

Convictions based on proof: People complain that corrupt politicians like Nawaz Sharif go scot-free due to legal loopholes. But these legal loopholes can be plugged if the National Accountability Bureau (NAB) conducts the investigations competently and prosecutes these cases diligently in court. Also, people strongly believe that in view of persistent and credible corruption allegations against Nawaz Sharif’s family, the latter should be convicted and sent to jail. But regardless of any persistent allegation, the golden rule of criminal law is that no one can be convicted and sentenced to jail unless such conviction is based on legally credible evidence. If we don’t want to apply this golden rule, why not simply try the family before the military courts?

Guilty reasoning: The main criminal charges against Nawaz Sharif family are very specific. Firstly, Nawaz Sharif and his dependents have been owners and in exclusive possession of four Avenfield properties since the 1990s. Secondly, Nawaz Sharif’s family failed to justify the legal bona fide sources of the purchase of these apartments in the 1990s. Ownership and exclusive possession of the apartments in the 1990s (and not 2006) was the foundational basis of the prosecution case, because, as the former prime minister’s sons had no income in the 1990s, these apartments must have been owned by Nawaz Sharif and acquired through corrupt means.

On the basis of these allegations, they were charged with the following, inter alia, main offences: (a) Section 9(a)(iv), NAB Ordinance: any person who by corrupt means obtains for himself or dependents any property; (b) Section 9(a)(v), NAB Ordinance: any person or any of his dependents who are in ownership or possession of any asset disproportionate to his/her known and justifiable sources of income. The rest of the allegations/charges like the forged trust deed were a sideshow.

An examination of the Avenfield judgement leaves one with mixed feelings of shock, horror — and amusement.

On the first criminal charge, the judgement dramatically holds that “prosecution have no bright evidence in respect of 9(a)(iv) NAO, 1999. So the accused are acquitted under that section of law … It was difficult to establish ownership of properties which was purchased through offshore companies formed in tax havens due to veils of secrecy [emphasis added]”. Thus, the prosecution failed to prove that the apartments were acquired by Nawaz Sharif through corrupt means in the 1990s or in 2006; most importantly, the prosecution failed to prove that they acquired these apartments in the 1990s.

On the second criminal charge, the judgement holds that “prosecution has succeeded to establish the possession of accused on the Avenfield Apartment even during the nineties [emphasis added] … Prosecution in the circumstances of the case and evidence produced has established that Avenfield Apartments were not purchased from sources of income shown by the accused [emphasis added]”. Thus, the judgement holds that the exclusive possession of the apartments by the Sharif family in the 1990s is proved by their ownership of the apartments, their use of the apartments during this period and other circumstantial evidence.

How not to write judgements: An examination of this judgement leaves one with a combined feeling of shock, horror and, sadly, amusement. Firstly, it is a lengthy judgement of 174 pages, in which 147 pages consist of mere description of the court and case proceedings while only 27 pages are devoted to findings and reasoning for the criminal convictions. Can any trial court do justice to such a complicated white-collar criminal case with voluminous documents in merely 27 pages?

Secondly, this judgement is literally littered with spelling and grammatical mistakes. Can any judge with such poor command of the language conduct a white-collar criminal case with such complex documentary and factual controversies? No wonder, this judgement is bursting with incoherence and reads like a first sketchy draft that has not been proofread.

Fundamentally erroneous judgement: Justice Azmat Saeed in the Panama Papers Supreme Court judgement rightly held that “the prosecution must establish that a person or his spouse or dependent or benamidar owns or possesses a property. If the aforesaid allegation is proved then the accused must give an explanation as to the source of legal funds”.

This trial court judgement itself reiterates this by holding that the “initial burden of proof is on the prosecution to establish the possession of properties by an accused disproportionate to his known sources of income”. Ownership, possession and no justifiable proportionate income were key to the conviction. Despite this clear legal position, this judgement holds that Nawaz Sharif’s family has not acquired these apartments through corrupt means and the real/human owners of the apartments in the 1990s are not identifiable, but then bases the criminal conviction on the finding that the exclusive possession of the apartments by the Sharif family in the 1990s is proven by Nawaz Sharif’s acquisition of the apartments in those years — a damning contradiction.

Secondly, the entire prosecution case is based on exclusive possession (indicating ownership) of the apartments by the Sharif family in the 1990s. Shockingly, no credible evidence, as opposed to circumstantial evidence, is produced by the prosecution to prove the Sharif family’s exclusive possession (indicating ownership) of the apartments during 1990s.

Thirdly, the Sharif family’s not having justifiable sources of income for purchasing the apartments is based on an “analysis charts of assets and liabilities prepared by JIT [Joint Investigation Team]”. Can anyone’s assets be seriously proved by an assets and liability spreadsheet? Can the justifiable acquisition of the apartments in 2006 be refuted without producing material evidence of the assets and liabilities of Nawaz Sharif’s family especially Hussein Nawaz? In short, it is an irrational judgement, based on factual inferences and not evidence, which is the result of an incompetent prosecution.

I dread that unless corrected in appeal, this judgement will not only severely damage the Supreme Court efforts to hold the political elites accountable but tragically, will also make the Pakistani criminal justice system into a global judicial pariah.

The writer is a lawyer.

Published in Dawn, July 20th, 2018