PITY THE NATION

Each man’s death diminishes me,

For I am involved in mankind

Therefore, send not to know

For whom the bell tolls,

It tolls for thee

Johne Donne

Panama Papers scandal is tantamount to a political Buzkhashi in and around the Supreme Court of Pakistan. I call it ‘tossing a carcass’ to evade responsibility, and reluctance to bring corrupt to justice.

The remarks and observations of the honourable judges of the bench become a hot topic outside the court. Irked by the furore their comments generate, the court remarked that both parties are speaking more on media and presenting less proofs in court. But when a case is being contested between the public and individual interests, the responsibility for creating awareness falls directly on the petitioners.  Also unearthing missing links are the function of the state and its organs. This function of acting as investigators and jurists puts an added burden on the apex court.

It is to be seen that petitioners are acting in public interest and not purely for their own individual interest. Relentless pressure by petitioners has led to admission of ownership of properties by the respondents. Once such a petition is entertained and heard as a matter of public importance, the court along with the relevant investigative authorities are under a legal obligation to switch into an inquisitorial or enquiring mode respectively as per the recent judicial precedents or law and more so under the present circumstances wherein raising of important legal questions has resulted in admission by the respondents (i.e. the family of Prime Minister Nawaz Sharif) that ownership of properties worth billions belong to them and consequent whereupon the burden of proof has already shifted on the respondents. If they continue withholding information, it is to their own peril.

At the same time the petitioners are not equipped with the mandate and tools of a criminal investigation agency which can employ its coercive procedures or processes to carve a trial worthy case for prosecution.  The culpability of Mian Nawaz Sharif’s family is already floating on the face of the record unless they prove that the assets or properties in question have been lawfully acquired through legitimate sources besides also clarifying the contradictions that hitherto exist in the statements made by the Prime Minister and his kith and kin before the Parliament, press and electronic media. Indeed if it deems Pubic Interest to be legitimate, then it also means that this is the test of Supreme Court to put all issues of governance and its laments related to it to the anvil of correction. Surely the Supreme Court has the power to order NAB, FIA, SBP and SECP to file corruption cases against Nawaz family in the event of their failure to justify such huge acquisition of assets which is much beyond their known sources of income. There are links of the past that include the FIA Report submitted by Mr. Rehman Malik and proceedings of NAB in Hudaibiya Paper Mills that need to be consulted.

The Supreme Court once rejected the notion of a Commission in May 2016 with the remarks that in order for a commission to be formed, legislation (ToRs) will first have to be passed by the parliament. Earlier Barrister Zafarullah Khan submitted a wild card challenging the legitimacy of the bench alleging interference in the powers of the Parliament. The Supreme Court dismissed the plea with the observations that the court had already refused to form the commission, adding it was premature and “does not call for exercising court’s jurisdiction under Article 184 (3) at this juncture”. So when the Court has already started to exercise its powers under Articles 184 and 187 of the Constitution, then, why is it now showing a tilt towards the formation of a commission; and why is it seemingly of the view that Prime Minister Nawaz Sharif may present himself before a commission?

Those who dealt with Gilani case and are familiar with the facts thereof also know that Gilani’s contempt of court conviction was commented as ‘poetry rather than on any evidence of actual contempt of any court order’. As maintained by Aitezaz Ahsan the defendant had never been directly ordered and was yet punished. Even the case of hanging of Zulfiqar Ali Bhutto has become an albatross for the Supreme Court. If innocent Prime Ministers were convicted in the past then why not a guilty Prime Minister who has candidly admitted that the ownership of vast assets belong to the Sharif Family.

Finally, the apex court has postponed its constitutional responsibility till January 2017 when a new Chief Justice will be in office to constitute a new bench. The new Chief Justice will also henceforth be on trial since justice is not only to be done but it also should be seen to be done. If news and flashes in social media are correct, then the new Chief Justice should take leave from the case and allow the senior judge to head the new bench.

Legal judgements based on the high pedestal of poetry also become an albatross around the neck of jurists. One such example is quoting the poetry of Khalil Gibran and John Donne by Justice Asif Saeed Khan Khosa, followed by his own poetry with an apology to Khalil Gibran in his remarks on Contempt Proceedings against Syed Yousaf Raza Gillani, the Prime Minister of Pakistan on 26 April 2012.

Pity the nation that achieves nationhood in the name of a religion

but pays little heed to truth, righteousness and accountability

which are the essence of every religion.

Pity the nation that proclaims democracy as its polity

but restricts it to queuing up for casting of ballots only

and discourages democratic values.

Pity the nation that adopts a Constitution

but allows political interests to outweigh constitutional diktat.

Pity the nation that demands justice for all

but is agitated when justice hurts its political loyalty.

Pity the nation that elects a leader as a redeemer

but expects him to bend every law to favour his benefactors.

Pakistan is a Nation-State. Should we pity the Nation comprising its people whose public interests are captive or the state that comprises the Judiciary, Parliament and Executive? What lies between the State and Nation is the Bastille Revolution.

Samson Simon Sharaf

PANAMA: THE MARSHY TRAILS

Few would realise that this OpEd on 12 November 2016 by me changed the course of the entire Panama Case in the Supreme Court of Pakistan. I got an unexpected appreciative call from Senator Rehman Malik, who despite his dialogue with me is absent from the entire affair

Money laundering and operating offshore businesses by Pakistanis without intimation to authorities under the operating laws is a criminal offence. Though PROTECTION OF ECONOMIC REFORMS ACT 1992 and circulars of the State Bank of Pakistan prohibit such activities, loopholes in it facilitated laundering and evasion. The critical period spanned 1992 to 1998 when black money through Hawala was whitened. During this period, mushrooming industries, growing bank loans/defaults and corresponding activity in offshore acquisitions in contrast to economic indices provide interesting conclusions. Remember, Pakistan was under sanctions while some were making fortunes.

 

Commentaries on Panama lead to an irresistible conclusion that the entire drama of Economic Reforms Act 1992 passed by the legislature was actually a diversion in the name opening overseas markets. The hidden purpose was to whiten black money through Hawala and subsequently siphon it abroad through fake accounts. The Act did not permit offshore businesses without intimation to concerned authorities. With hindsight, freezing these accounts in 1998 and allowing banks to surreptitiously shift capital abroad also had a purpose. The entire nation and system was cheated from 1992 to 1998. Once this system was reintroduced with more checks in 2001, post 9/11 Pakistanis flooded the banks with remittances instead of the ‘run on banks’.

 

The State Bank of Pakistan did investigate the unprecedented outflows post 11 May 1998, but the volume of flight never became public. Given the indicators, it is probable that much of this cash was parked to offshore businesses. Interestingly, most offshore companies including those owned by Sharifs were formed after this legislation.

 

There is a legal opinion that Panama Papers are an open and shut case for all accused Pakistanis. But trails of surreptitious activities lead through marshes that erase footprints. In contention is the ownership of properties in London that the sons insist were bought in 2006. The links to these companies and owners before 2006 trail back to 1992. Reports allege that during this period, Sharif businesses grew from one to thirty and loans (money laundered abroad) snowballed to Rs. 10 Billion. The actual figures could be much higher.

 

In order to connect the dots, litigants have to find trails to these offshore companies prior to 2006 during the time when any member of the Sharif family held a public office. They also have to prove that all family members aspiring to hold public offices made wrong declarations to Election Commission. In addition, the law must act against those members of the Sharif family who still hold Pakistani nationalities.

 

The tussle to indict Nawaz Sharif in money laundering and offshore businesses is ongoing since 1996. The storming of Supreme Court in 1997, sacking of Rehman Malik in 1998, resignation of General Jehanghir Karamat in 1998 and the deal with President Musharraf in 2002, manifest determination of keeping this case shut. The latest efforts to reopen the case of Hudabiya were squashed by courts in 2012 and 2014. Repeated appeals by NAB particularly during the tenure of Admiral Fasih Bokhari were neither accepted by courts nor the election commission.

 

Experts believe that Hudabiya is ‘THE CASE’ that establishes the linkage of shady money trails, offshore business and properties of Sharif family since 1992 in full knowledge of the members of the Sharif family holding public offices. Pursuing it has remained elusive.

 

In the 90s, investigations were led by Rehman Malik, the Additional Director General of the Federal Investigation Agency. Reportedly, this comprehensive report was submitted to the President of Pakistan and Chief Justice with the following remarks “I have also been warned to keep my lips tight, otherwise, my services shall be terminated and I again would be jailed in false cases. In brief, the extent of corruption and money laundering are staggering. I leave it to your absolute wisdom and judgment to determine the moral and constitutional justification of a person like Nawaz Sharif to hold the sacred office of prime ministership of an Islamic republic”. After the release of Panama papers, the accuracy of this report stands confirmed.

 

Based on this report NAB investigated and filed many cases against the Sharif family. Incidentally the names of Nielson Enterprises Limited and Nescoll Limited in this report link to Shamrock Consulting Corporation (missing link) established in May 1992. Trails of fake accounts maintained by Khalid Kayani in Habib Bank AG Zurich, Davis Road, Lahore and Bank of America, Lahore ultimately lead to Shamrock an offshore company established on 15 May 1992 began in August 1992, a month after the legislation on foreign currency was passed. Shamrock is owned by the Sharif Family and they cannot absolve themselves of fake accounts leading to transactions in dollars from Pakistan.

 

One identifiable trail of 350,000 dollars leads to Lloyds Bank to Hans Rudolf Wegmuller, a Director of Banque Paribas en Suisse Zurich who is also Director of Ansbacher Switzerland, a fiduciary company that acts on behalf of the Sharifs. The report reveals purchase of four luxury flats at Avenfield House, London through solicitors, namely Dibb Lupton Broomhead in 1993, 1995 and 1996. Wegmuller administered the four luxury flats, owned through two offshore companies called Nielson Enterprises Limited and Nescoll Limited, controlled by Urs Specker of Ansbacher Switzerland. Panama Papers confirm that these companies are owned by Sharif’s children.

 

Interestingly, the money trails to Shamrock, subsequent incorporation of Nescoll and Nielson bear identical names and signatures of agents. While Maryam documented as a dependent is the sole beneficial owner of Nescoll and Nielson, Coomber is jointly owned by Maryam and Hussain. Now the name of Shamrock has changed to Greyrock Consulting Limited and Mossack Fonseca & Co that handled these companies in past has been replaced by MMG (BVI) Corp. This brings into contention the declaration filed by Nawaz Sharif before the Election Commission.

 

Two sets of decision by British Courts clarify trails.

 

First, Nescoll, incorporated on January 27, 1993, purchased flats 17 and 17-A of Avenfield House, Park Lane, London, on June 1, 1993, and July 23, 1996, respectively; and Nielson Holdings, incorporated on April 14, 1994, purchased flats 16 and 16-A of Avenfield House, Park Lane, London, on July 31, 1995.

 

Secondly, the decision of the UK High Court in the Hudabiya loan default case in 1999 shows that the loan was acquired on February 15, 1995. Despite Court orders on March 16, 1999 the loan was not paid back. Therefore the said court on November 5, 1999 attached the properties of flat 16, flat 16-A, flat 17, flat 17-A of Avenfield House to the UK Bank. Once the loan was paid, the properties were released.

 

If the offshore companies Nielsen and Nescoll own Park Lane flats since 1993/1995, the only way the Sharifs could have attached them to a UK bank in 1999 would be if they also owned the offshore companies. Thus it is clear that the Sharifs owned these flats in 1995 and not 2006 as is being claimed. It is also evident that both Mian Nawaz Sharif and Mian Shahbaz Sharif were in full knowledge of these offshore businesses and chose to hide it after re-entering Pakistani politics in 2007.

 

Courts showed bias in a criminal case that should have ended in conviction or acquittal. Lahore High Court while quashing a NAB argument on opening the case admitted that Nawaz Sharif allegedly had nominal shares in the business. The question is not nominal shares but full knowledge and allowing it to happen while in public offices. They continue to deny such activities before 2006 while still holding public offices. Judge Anwar Ahmed of an accountability court termed all charges “politically motivated”, a remark that was never deliberated.

 

Justice Iftikhar Chaudary targeted select individuals who could have impacted the logical conclusion of this case. The pressure brought on Admiral Fasih and Governor State Bank by the Chief Justice was not without reason. Soon after PMLN came to power, Admiral Fasih was dismissed by the Chief Justice. Governor State Bank and Chairman SECP resigned.

 

The Supreme Court bench handling the case must take cognizance of these events.

 

After evaluating all evidence, some questions the apex court and litigants must pursue include: –

1) When were the offshore companies in the name of any family member formed or purchased?

2) Names of owners/trustees,

3) Sources and amount of initial and subsequent funding/profits

4) Loans obtained through these companies and against what securities

5) What and when were properties owned by these companies purchased?

6) All financial transactions pertaining to these companies since 1992 and

7) Ask State Bank of Pakistan to submit and make public record of all foreign currencies remitted out of Pakistan from April to May 1998.

 

Samson Simon Sharaf

12 Nov 2016