A judicial answer to ‘Mujhe kiyo’n nikala?’

2018-07-08T23:42:45+05:00 Saad Rasool

After an excruciating wait of almost a year – since the 28th July, 2017 verdict that disqualified Mr. Nawaz Sharif – the learned Accountability Court has been able to answer the one question that has haunted our politics these many months: ‘mujhe kiyon nikala’? And the answer spans an incriminating history of hidden financial transactions, ownership of off-shore assets, and presenting of forged documents (on oath) before the relevant courts of law.

As a result, on Friday, the learned Accountability Court, through a 174-page judgment, has convicted the former Prime Minister Nawaz Sharif, his daughter Mrs. Maryam Nawaz, and his son-in-law Captain (R) Safdar, under the relevant provisions of the National Accountability Ordinance, 1999.

Specifically, after detailed analysis of the evidence presented (spanning more than 150 pages), the learned Accountability Court concludes that the “guilt” of Nawaz Sharif stands proven under section 9 of the NAB Ordinance, and therefore the former premier is “convicted and sentenced to rigorous imprisonment for a term of ten years with fine of 08 million pounds”, in addition to being “sentenced under offences cited at Serial No. 2 [of NAB Schedule] for one year”. Also, the judgment of the learned Accountability Court concludes that “the trust deeds produced by the accused Maryam Nawaz were also found bogus” and that “Maryam Nawaz was instrumental in concealment of the properties of his father” and thus “aided, assisted, abetted, attempted and acted in conspiracy with her father accused Mian Muhammad Nawaz Sharif who was holder of Public Office.”

Consequently, Mrs. Maryam Nawaz “is convicted and sentences to rigorous imprisonment for seven years with fine of two million pounds… [ ]… and simple imprisonment for one year under Serial No. 2 of the [NAB] Schedule].”

Furthermore, Captain (R) Safdar, who “had signed the trust deeds as witness” and had “also aided, assisted, abetted, attempted and acted in conspiracy with the accused Mian Muhammad Nawaz Sharif and Maryam Safdar” is this “convicted and sentenced to rigorous imprisonment for one year… [with an additional]… one year under Serial No. 2 of the Schedule”.

Lastly, these convicts “shall be disqualified to contest election or to hold public office for a period of 10 years to be reckoned from the date [of being] released after serving the sentence and they shall not be allowed to apply for or to be granted or allowed any financial facilities in the form of loan etc. for a period of 10 years from the date of their conviction”, as prescribed under section 15 of the NAB Ordinance.

Separately, Nawaz Sharif’s two sons (Hassan Nawaz and Hussain Nawaz) have been declared “proclaimed offenders” (ishtihaari), and “non-bailable perpetual warrants of arrest” have been issued for their arrest and appearance before the learned Court.

In no uncertain terms, the judgment of the learned Accountability Court is perhaps the most damning conviction (for financial corruption and assets beyond means) of an elected Prime Minister, in recent world history. On the domestic front, it spells the end of Nawaz Sharif family’s politics for the foreseeable future. Also, when coupled with ongoing investigations in Punjab and the arrest of Fawad Hassan Fawad, it casts a long shadow on the overall functioning and credibility of PML(N) and its policies.

How, if at all, can Nawaz Sharif and his party recover from this body-blow? What options does the former Prime Minister have in his legal and political arsenal? Should he continue with his policy of institutional confrontation (as ushered in by the Maryam led brand of politics)? Or should he, instead, now come to the realization that politics cannot be used as a strategy to overcome law? Most importantly, perhaps, what course of action should Shebaz Sharif and the remaining leadership of PML(N) adopt for the upcoming generation elections, and beyond?

To answer these questions, a simple principle must first be enunciated: that legal cases are won or lost on the basis of legal arguments. Political antics and (empty) threats of mass-movement cannot substitute the absence (or deficiency) of a legal argument during trial. Getting votes cannot be used as a defence for committing a crime. Politics does not lend immunity to law. Nawaz Sharif and his family, from the very first day that a petition was filed against them in them before the honorable Supreme Court, have attempted to defend a ‘legal’ case through ‘political’ strategy. It was a mistake before the honorable Supreme Court. And it proved to be a mistake before the learned Accountability Court.

From the legal perspective, Nawaz Sharif and family has a right to file an appeal against the judgment of the learned Accountability Court. Under section 32 of the NAB Ordinance, such an appeal can be filed to the concerned High Court “within ten days”. And after that, the said High Court can hear the matter in detail, reviewing all evidence and judicial dicta, as necessary.

However, in the meantime, there seems to be virtually no plausible way to escape arrest proceedings. There are only two possible ways to avoid incarceration: 1) getting a bail, and 2) getting the sentence ‘suspended’. The jurisprudence concerning granting of bail is already settled – for a bail to be granted, the convict has to first surrender him/herself before the concerned law enforcement agencies and the Court, before such an application can even be entertained. There is no judicial precedent where a NAB convict (without first surrendering to the court) has been granted bail post-conviction. Similar jurisprudence exists in terms of ‘suspension’ of the sentence. The convict must be present before the Court (in this case, under arrest) before an application for suspension of sentence can be entertained. In either cases, the arrest of former premier seems unavoidable.

It is also worth clarifying the point that ‘suspension of sentence’, in case granted, will not wash away the conviction itself. In other words, even if the ‘sentence’ is suspended during appeal (and Nawaz Sharif avoids being arrested), his (and his family’s) conviction will stay in place, thereby disqualifying them from contesting election or seeking public office. The learned Federal Law Minister, in recent interviews to the media, had suggested that suspension of ‘sentence’, if granted, will also mean that Maryam Nawaz and Captain (R) Safdar can contest the upcoming elections. However, there is a plethora of judicial dictas (by the honorable Supreme Court of Pakistan) which are contrary to this contention. A suspension of ‘sentence’, even if granted, will continue to attract the disqualification which has resulted from the ‘conviction’ itself. The only way for the conviction to not be operative if the entire judgment of the learned Accountability Court is either suspended, or (eventually) set aside.

These are difficult times in Pakistani politics. If for no other reason, then simply because an entire era of corrupt political culture (encapsulated in the likes of Nawaz Sharif and Asif Zardari, etc.) is coming to a close. This is not a battle for ‘vote ko izzat do’. This is fight to protect personal wealth and fiefdoms, which have grown more powerful than the State itself. During this time – keeping politics aside – the sane-minded individuals in Pakistan need to articulate the truth for what it is: that Nawaz Sharif has been convicted in a corruption case, through due process of law. And others (who for the time being are sitting in their ill-conceived impunity) are soon to follow. Only in this way can Pakistan hope to fulfill the promise of its creation.

 

The writer is a lawyer based in Lahore. He has a Masters in Constitutional Law from Harvard Law School.

saad@post.harvard.edu

@Ch_SaadRasool

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