The Islamabad High Court’s decision to suspend the jail sentence of former Prime Minister Nawaz Sharif and his daughter Maryam provides temporary relief to the popular duo. But given Pakistan’s judicial history and the enduring pattern of the country’s courts acting as a shill or decoy for the all-powerful military establishment, there will probably be many more twists and turns before this case is eventually laid to rest.
Sharif, his daughter, and son-in-law were convicted hastily by an accountability court ahead of July’s general election, with the obvious purpose of influencing the election’s outcome. The case against them pertained to the ownership of four luxury properties in central London that had come to light in the Panama Papers, which revealed owners of offshore companies.
The judge who convicted Sharif made it clear in his judgment that the prosecution had presented no evidence of corruption and also that Sharif’s ownership of the properties in question had not been established. But he still convicted him for failing to explain his connection to the properties.
His daughter, Maryam Nawaz Sharif, who could be his political heir, was sentenced to seven years in jail for abetting a crime and one year for not cooperating during investigation while son-in-law Safdar Awan was given a one-year sentence for not cooperating. The convictions barred all three from seeking public office for up to 10 years after release.
It was clear to anyone with a modicum of legal knowledge that the judge who convicted them had written his decision in a manner that left room for an easy appeal. The judge was under pressure to convict but realised that the law was not really on the side of the prosecution.
Sharif and his family members appealed against the conviction and also sought suspension of the sentence pending appeal. Section 426 of Pakistan’s Criminal Procedure Code provides for suspension of sentence and grant of bail if a judgment convicting a person suffers from glaring legal errors.
The Islamabad High Court identified those glaring errors while suspending the sentence pending hearing of the appeal in detail. While the suspension of sentence does not conclusively decide the question of guilt or innocence of convicts, the errors of the conviction judgment have already been determined.
“The prosecution has failed to show the properties belong to Nawaz Sharif. It also failed to prove how Maryam Nawaz was sentenced under the same charge sheet which convicted Nawaz Sharif,” Justice Athar Minallah pointed out while suspending the Sharifs’ sentence.
Given the legal lacuna, it would not be easy for the National Accountability Bureau (NAB) to make the conviction stand without introducing additional evidence, which might require a fresh trial.
But the law does not always matter in Pakistan’s judicial process, which has been subject to political whims for quite some time. Prosecutions involving political figures ignore the universal principle of presumption of innocence, and politicians are often asked to prove their innocence instead of the prosecution proving their guilt.
The ubiquitous intelligence services often ‘know’ more than they can prove and generate antipathy towards their target through the media even when the legal case is weak and lacks evidence.
Then there is the inherent weakness of Pakistan’s judiciary. Pakistan’s superior judiciary has, on several occasions, endorsed extra-constitutional military takeovers and sworn allegiance to coup-making generals.
Judicial verdicts given under pressure from the executive branch of the government or the military have sometimes been reversed after changes in regimes, and the country’s courts have in certain cases ignored their own precedents on grounds that an earlier judgment was issued under pressure or in specific circumstances.
Such politicisation of the judiciary has existed for years. Justice Nasim Hasan Shah, who served as Chief Justice in 1993-94, acknowledged that the Supreme Court’s 4-3 decision to endorse the execution of former Prime Minister Zulfikar Ali Bhutto in 1979 was made under pressure from military ruler, General Zia-ul-Haq.
As one of the four judges who upheld Bhutto’s conviction, Shah’s confession years later provided an insight into the mind of otherwise good judges while deciding political matters. He once told a television interviewer that sometimes a judge thinks that staying on the bench enables him to do good in other cases even if he gives in to some demands of a dictator or an all-powerful institution like the military.
Unlike Justice Shah, the current Chief Justice of Pakistan, Saqib Nisar, does not seem to think of a few bad decisions as the price to pay for other, better judgments. Nisar just does not care about legal niceties at all as long as he is acting ‘in the national interest’.
Nisar visits mental health institutions to check on the quality of their wards, kitchen, and medical stores, even though that does not qualify as part of the job description of the Chief Justice in the contemporary era.
He recently raided the hospital room of an undertrial political personality and recovered bottles of alcohol, which remains prohibited in Pakistan. Sindh politicians turned the tables on him by ensuring that the chemical examination report on the contents of the bottles he discovered showed that they contained honey and olive oil instead of whiskey.
The Chief Justice has also started a project to crowdfund building of dams although neither the constitution nor any statute allows him to do so. With a one billion rupee donation from the Pakistan army, representing two days’ salary of all soldiers, the fund has accumulated Pakistan Rupees 3.7 billion until the writing of this article against a target of Pakistan Rupees 1,722 billion needed to construct the Diamer-Basha Dam.
The Supreme Court website, which provides figures for the dam collection, also informs us that 40,662 cases are pending disposal before Pakistan’s apex court while, according to the Law and Justice Commission, more than 1.8 million cases remain undecided at different levels of Pakistan’s judiciary.
Justice Nisar’s lack of interest in providing justice to Pakistani litigants is matched by his ignorance. During a recent court proceeding he made the startling comment that NAB should be tasked with bringing this writer back to Pakistan because “NAB had agreements with United Nations Security Council (UNSC) pertaining to the return of suspects”.
Anyone who has read even a high school-level book or article on the UN knows that UNSC has nothing to do with the extradition of individuals disliked by Chief Justices of member countries.
Given this state of Pakistan’s superior judiciary, which initiated the case against Sharif by disqualifying him from the office of prime minister before trial, problems await Sharif even after the Islamabad High Court’s decision in his favour.
Judges are usually expected to think in terms of finer points of law but in Pakistan, the soldierly way of ignoring constitutional and legal technicalities ‘in the national interest’ now afflicts the judiciary as well.
Sharif’s fate, therefore, will be determined by whether the two chiefs – the Chief Justice and the Chief of Army Staff – can reconcile themselves to having him back in the political arena or not.
On the other hand, both chiefs will retire, one in December and the other next year, while Sharif’s political support base will endure. At some point, another Chief Justice and another Army chief will have to deal with that harsh reality.