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January 23, 2021

Politics as law

Opinion

January 23, 2021

The essential facts relevant to the Broadsheet matter are by now firmly obscured by political spin and a seemingly endless societal need for scandal that segments of the media dutifully feed.

Imagined facts leave little room for statements of what may actually have happened. Pointing out the legal significance or irrelevance, as the case may be, of what is being asserted in talk-shows and press conferences seems to be an exercise in bad taste. The foreign funding case before the Election Commission has suffered a fate not very different to that of the shambles that is Broadsheet. Let us consider the known facts of both, and the law, for whatever it's worth.

The first fact to note is that the Broadsheet arbitration awards and the recent judgment of the High Court in London in dismissing objections to the awards filed by the state of Pakistan in 2019 have neither disclosed nor ratified the existence of any asset said to be held by the Sharif family that was not already a part of the Joint Investigation Team (JIT) Report filed before the Honourable Supreme Court of Pakistan during the Panama hearings in 2017.

That JIT Report had identified 76 assets said to belong to the Sharif family inside and outside Pakistan. The National Accountability Bureau (NAB) was able to base plausible allegations of wrongdoing, in the form of successful references before accountability courts, only on the basis of two out of the seventy six assets in the JIT Report: the London apartment and the Saudi steel plant. The rest were found to provide no basis for prosecution.

The arbitrator did nothing more than take into account the properties and assets listed in the JIT report in order to arrive at an assessment of the value of assets that Broadsheet might have identified had its Assets Recovery Agreement of June 2000 with the National Accountability Bureau (NAB) not been unlawfully terminated in 2003. The award in favour of Broadsheet compensates it for “loss of chance” by granting it compensation equal to 20 percent of the value of the wrongfully acquired assets that it might have identified.

Broadsheet claimed the present market value of assets it might have identified at $820 million. This figure was firmly rejected by the arbitrator but has entered the chatter-stream in Pakistan as the value of wrongfully acquired assets that were identified by Broadsheet but were given up by NAB on account of some NRO, the expression for impunity deals popularised by the prime minister. This is simply incorrect. NAB still remains empowered to go after any asset it has reason to believe was wrongfully acquired. No statute of limitation or NRO stands in the way of action against any individual, including those mentioned by the principal beneficiary of the arbitration award, Mr Moussavi. It is another matter that Mr Moussavi has provided nothing by way of evidence to back his claims.

The arbitrator eventually put a figure of $95 million on assets that Broadsheet might have helped identify had its agreement not been terminated. Hence, $19 million, along with interest, were allowed to Broadsheet as compensation equal to 20 percent of the figure of $95 million, in accordance with the terms of the terminated agreement. In reality, Broadsheet had identified nothing before or after 2003, when its agreement was terminated.

The High Court in London came into the picture in 2019 when NAB and the state of Pakistan challenged, through lawyers instructed by the present government, as baseless and excessive the figure of $95 million used by the arbitrator as the value of ill-gotten Sharif family assets that Broadsheet might have identified. The High Court in London rejected NAB’s objection to the figure of $95 million on the ground that the failure by the arbitrator to provide a basis for this figure did not fall within the narrow grounds available in the laws of the United Kingdom for interference with an arbitral award. The arbitrator’s speculations must stand unchallenged.

Much speculation has also attended the so-called foreign funding case before the Election Commission of Pakistan. Section 6 of the Political Parties Order, 2002 prohibits a political party from receiving contributions from “any foreign government, multi-national or domestically incorporated public or private company, firm, trade or professional association.” A political party may accept donations and contributions only from individuals. Any prohibited contribution or donation, whether in cash or kind, received by a political party is to be confiscated in favour of the state.

Section 13 of the same law requires all party leaders to certify each year that no funds from any source prohibited by the law were received by the party. What if a political party has in fact received prohibited funds but its party leader has issued certificates declaring that no such funds were received? Does the party leader remain righteous, sadiq and ameen? Is the party leader allowed to plead inadvertence as justification for the execution of inaccurate or untruthful certificates regarding the party’s finances?

The standard of probity required of a member of parliament as well as of a party leader has been laid down by the Honourable Supreme Court of Pakistan in a series of landmark judgments. In the Panama Case of 2017, the then prime minister Nawaz Sharif was found to lack the moral standing required of a member of parliament by Article 63 of the constitution on account of his having failed to declare in his asset statement an emolument of 10,000 dirhams that he had in fact not received. This was considered an accrued receivable which, in law, must be considered an asset. Mr Nawaz Sharif was deemed to have wilfully concealed an asset. Inadvertence was not accepted as defence.

This putative deception on Mr. Nawaz Sharif’s part was held, in 2018, in cases brought against him before the Honourable Supreme Court by the leading lights of the PTI and PPP to also render him ineligible for retaining the post of the president of his party. Convictions by accountability courts occurred much later. It is clear that a failure to disclose and the issuance of an incorrect certificate can have unexpected consequences.

The popular conversation about the foreign funding case has focused not so much on the party leader as on the party itself. The Political Parties Order of 2002 makes a distinction between a party that may have received prohibited funds that are liable to confiscation and a political party that is “foreign aided”. The formulation used in Section 15 of the Order of 2002 – foreign aided party – appears to envisage a political party that has done more than receive prohibited funds on a few occasions.

At a minimum, consistent and protracted support by some foreign entity or power, whether through provision of prohibited funds or in some other manner, would have to be established for a political party to be considered “foreign aided” and liable to dissolution on a reference by the federal government to the Supreme Court of Pakistan. It is for the Election Commission of Pakistan to finally come out with whatever facts have become available to it over the past six years. Is the case against the PTI one of sporadic receipt of prohibited funds and issuance of inaccurate certificates by the party leader? Hardly anyone expects the facts to reveal anything worse.

The allegation that a political party is foreign aided is akin to the charge of treason against an individual holding high office. Such charges have been traded across the political trenches far too frequently. A population told, with little basis, that hundreds of millions of dollars worth of loot lies overseas, protected by impunity deals – or that the country is being run by agents of foreign powers – can be forgiven deep cynicism about the political system mandated by the constitution. Such cynicism is to be feared. It is time to move on.

Email: [email protected]

Twitter: @salmanAraja

The writer is an advocate of the Supreme Court of Pakistan.