Much has already been made of the NAB judgment and the standards of judicial skill evidenced in its delivery. Politicians and pundits alike have taken to treating it as they do the annual finance budget: listen to each other’s opinions and then denounce them or support them as awam dost/awam dushman.
If one were to forgive the quality of English in which the judgment is written, as well as its lack of coherent structure as to its recording of judicial precedent and the arguments of both sides, what it boils down to, and the facts it is preceded by, are as follows:
How it started
There are assets that belong to the family of Nawaz Sharif that his family means cannot duly account for. When the Panama Papers revealed certain details the Supreme Court took note and demanded an inquiry. A Joint investigation Team was created, and its appointment was seen as a victory by both the NS brigade as well as his opponents.
The JIT put together a voluminous report. The court held that it shifted the burden of proof upon NS—a burden that he prima facie did not discharge with satisfaction. Although he was disqualified on a separate point of un-withdrawn receivables, NS was given the chance to defend himself in NAB references and in an investigation as directed to be filed by the SC.
The trial begins
The NAB court went back to the JIT report and examined all the parties to the case other than Nawaz Sharif’s two sons who had absconded from the trial.
NS’s lawyer’s arguments were focused on the need for due process and a fair trial, which he argued could not happen if the JIT report were admitted in the way the NAB court was want to do.
For every document relied upon as provided through the JIT report, NS’s legal team focused on evidentiary requirements, which were not met, such as the documents not being originals, the deliverer of the document not being its scribe or its witness, the documents not pertaining to the accused directly, etc.
The NAB court decided that the case was an answerable one based upon the evidence presented by the Prosecution, and that NS had failed to answer the case adequately.
One of the central reasons which the NAB court used to pass NS over the threshold of reasonable doubt was that once the burden of proof had shifted by way of the assets being shown to be his, NS and his family failed to provide for any reasonable form of evidence that their version of the story was the correct one.
NS’s story is that there were business relations between Mian Sharif and the Qatari royal family, which owned properties in London. These properties were used by the Sharif family in the 1990s due to their familial friendship with the Qataris, and not due to any ownership interest.
In the 2000s certain family assets were settled. Mian Sharif wanted that his share of the Qatari investment be realised by way of the properties in London, and that they be transferred to his eldest grandson.
In order to reach this family settlement, a trust deed was registered in 2006, and Maryam Nawaz was the trustee who was holding these flats for the benefit of her brother(s). To support this version of events, the NS family produced two documents: a letter by a Qatari and a trust deed. The letter is an estimation of events, and the writer of the letter did not bother to back it up by appearing in court. That leaves the trust deed, which we shall come to later.
The Prosecution’s argument
The prosecution’s story is that the London properties belong to two BVI-registered companies called Nielsen and Nescoll and have belonged to the same companies since the mid-1990s. This is proven by deeds recorded in the property registers of the UK. Since these properties were in the use of the Sharif family and they were paying their amenity costs as well as living in them before 2006, the prosecution argues that the onus shifts to the Sharif family to prove how they were not theirs in that period of time.
This claim is bolstered by the Prosecution when they argue that certain members of the Sharif family (Mian Sharif, Shehbaz Sharif and Abbas Sharif), after losing a claim in the UK high court in the late 1990s and failing to pay the monies due, had their assets attached by the court until they made payment.
The London properties were the assets attached, and this attachment was then released by the Sharifs by way of settlement of the claim through other means. This adds to the onus to disprove, as do certain banking correspondence entered into by a Saudi bank and Maryam Nawaz that mentions her interest in the London properties.
Finally, the prosecution argues that the trust deed was not the reason why Maryam’s name finally appeared on the bearer certificate in 2006—it was actually because transparency laws in the BVI jurisdictions changed. It became mandatory for shareholders and owners to be listed on company certificates. These laws were made when regulatory principles were tightened globally to better fight money laundering and prevent a shell within a shell ownership of assets.
The prosecution argues that the 2006 naming of Maryam is merely a formalising of the asset situation that prevailed well before that date in order to bring the ownership in accordance with the more stringent amended laws of the BVI states.
To all of these arguments, the NS family responds by arguing the technical grounds of impermissibility and imperfection of the evidence presented. In proving their own case, they only forward the Qatari letter, and the trust deed.
In the face of these two positions, the NAB court decided that the Sharifs are guilty of the lesser standard of proof required to prove that assets are beyond means while a member of their family was in public office.
The Sharifs are held as innocent of the more direct standard which requires a link between the assets and the holding of public office to evidence those ill-gotten gains i.e. evidence of corruption.
Direct corruption in public office was not within the scope of the Avenfield reference in the first place, and was hence irrelevant. Convictions are meted out for the main offence, with Nawaz getting 10 years and Maryam getting seven for abetting him.
That trust deed
Now to the trust deed.
An expert says that the eyelet with which the document has been held together has been tampered with.
Certain pages have more staple perforations than others.
The date was originally perhaps 2004 and the 4 has been tampered with to say 6 to make it 2006.
And in a last and damning opinion, the expert states that the font used to type up the document was not commercially available until January of 2007.
To disprove the trust deed analysis of the expert, the NS family team firstly bring into doubt his expertise, next they argue that developer versions of the font could have been used.
No evidence is presented from their own sources to verify the authenticity of the trust deed. No attempt is made to qualify their own side of the story with an expert of their own.
It is here that things get interesting.
1. Suppose a superior court finds it unreasonable to shift the onus of proof upon the Sharifs when it comes to their assets being beyond their means?
2. Suppose it finds the criminal standard that needs to be met has in fact not been met and the Sharifs ought not to have been convicted of having assets beyond their means?
3. What happens to the fraudulent trust deed? Has that not been proven beyond reasonable doubt? So, even if the conviction of assets beyond their means is thrown out, Nawaz’s 10 and Maryam’s 7 years become moot; there still stands the one year Maryam got for the attempt to defraud the court with a fraudulent document. That is a conviction a court will find very hard to overturn.
The disqualification law
The constitution of Pakistan Article 63(1) (h) disqualifies anyone convicted of two years or more from contesting elections for a period of five years from the date of their release. This does not apply to Maryam, as her fraud is only punished by a one-year sentence. However, the state puts a higher burden on those convicted under the NAB Ordinance, Section 15 which disqualifies anyone convicted under its sections from holding public office for 10 years.
Supposing a government comes into power that feels that the more stringent NAB disqualification of 10 years is unwarranted, and the constitutional limitations of Articles 62 and 63 are more than enough. Suppose it proceeds to amend the NAB ordinance and removes Section 15 of the law altogether?
All this would require would be a simple majority, and it would be in the interests of parties other than the PML-N to avoid the higher disqualification standard of NAB as well. Maryam’s one-year conviction stands, but because it is below the disqualification threshold that the constitution mandates, it now carries no restriction from contesting. Maryam will be able to contest the elections. From prison.