Bad man theory of law

If you think a judicial verdict is about legal reasoning that explains how a judge came to a certain conclusion while being guided by legal texts, you don’t want to read Judge Muhammad Bashir’s judgment. Those who are already convinced that Nawaz Sharif is a money-launderer living on stolen money need no reasoning. Those who were relying on a judicial account of how law and legal processes lead to such conclusion won’t find anything useful in the judgment. It adds nothing to what has been said in the media trial convicting NS.

Jurists have long mulled over what judges say they are doing while deciding cases, what they actually do and if there is a gap between the two. Theories such as formalism and legal realism are rooted in such inquiry, the purpose of which is to be able to predict legal outcomes with certainty. Rule of law is different from rule of men because – irrespective of the personal morality of a judge – it allows one to predict legal outcomes by applying statutory texts, settled legal principles and judicial tests to the facts of a case.

Oliver Wendell Holmes, Jr, a proponent of legal realism had argued that, “the prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law.” He articulated the bad man theory of law: bad men are not concerned with the morality or logic of law but only the penal consequences it will produce for them. Herbert Hart’s ‘The Concept of Law’ was a blow to legal realism; it underscored that, if courts weren’t guided by legal rules, the distinction between rule of law and rule of men would vanish.

In Pakistan, we are still debating the need for due process. Justice Scalia argued in ‘A matter of Interpretation’ that, “of all criticisms levelled against textualism, the most mindless is that it is formalist. The answer is of course it is formalistic! The rule of law is about form… A murderer has been caught with blood on his hands, bending over the body of his victim; a neighbour has filmed the crime and the murderer has confessed…We nonetheless insist that before the state can punish this miscreant, it must conduct a full-dress criminal trial…Is that not formalism?”

The Panama case conducted by the Supreme Court and the accountability trial that has convicted NS and his daughter will be remembered for their exceptionalism and not their allegiance to settled legal rules. Does this make judicial outcomes less predictable in Pakistan? No, it doesn’t – if we employ the bad man theory of law with an Orwellian (Shooting the Elephant) twist. For example, we knew NS and Maryam would be convicted as the ‘people’ expected them to after their media trial. There are similar predictions regarding the appeal.

Many would declare that the purpose of law stands defeated when those ‘everyone’ knows to be crooked get away using due process, legal niceties and cunning lawyers. The bad men must be punished at all cost, including tweaking due process and applying principles and precedents such that they generate desirable outcomes. With this as the dominant and acceptable thought process, legal outcomes are largely predictable, except that they have little to do with legal reasoning. The marvel produced by Judge Bashir fits right in.

The extraordinary thing about Judge Bashir’s verdict is that it is utterly devoid of legal reasoning: it relies exclusively on the kind of commonsense inciting assumptions (starting with “how is it possible…?”) that formed the basis of NS’ conviction in the media trial.

Let’s look at some key issues. The prosecution’s star witness was Wajid Zia, the head of the SC-constituted JIT that had built the case against NS. The defence argued that it is settled law that a trial court can’t rely on an investigation officer’s opinion or a JIT report. The judge explained why he is deviating from settled law as follows:

“The reason in those authorities is that generally in our setup IOs are not experts. While [the] JIT was constituted at [a] high level by [the] Hon’ble Supreme Court of Pakistan, 30 to 40 experts assisted the JIT as stated by PW 16 in cross examination. This court has already given [the] opinion that [the] report of [the] JIT is not binding on the court but same can be considered if it is convincing and found based on reliable documents/material that opinion can be accepted and relied upon”.

That’s it: an SC-made JIT and a judge’s opinion that the JIT’s opinion is convincing equals complete reliance on the JIT’s opinion to return a guilty verdict.

The court doesn’t find that NS owns the apartments or owns companies that own the apartments or transferred funds to purchase them. So how does he become their owner, and thus living beyond means as a public office holder? Here’s the reasoning: “Interviews of Hassan Nawaz and Hussain Nawaz accused are showing that they lived in those apartments during years 1993 to 1996… [which is] when those apartments were purchased through offshore companies”. (Hassan’s Hard Talk interview is actually from 1999 not 1993).

“The ages of [the] children…in year 1993 were about 20 years, 18 years and 16 years respectively…They were dependents financially and could not purchase Avenfield apartments without financial assistance of anyone else father (sic).” “Generally, children remain dependent on their parents during their tender ages therefore accused No 1 cannot say that he had not provided any money to them to purchase the apartments.”

The court insinuates that as NS sometimes stayed at the apartments his children occupied, he has constructive possession. And, as the children couldn’t purchase them through their own means, NS must have provided the funds that he didn’t legally have and thus he is the benami owner. The court doesn’t verify the dates of possession of different apartments (there are four and purchased in different years) or explain why it disregards the submission that the children’s grandfather supported them (and not the father).

The benami ownership theory is based entirely on generalised assumptions about family relations in our society. The court holds that, “it was difficult to dig out actual owner beneficial (sic) of [the] offshore companies formed in tax heaven (sic)…Mian Nawaz Sharif has distanced (sic) from any transaction in respect of Avenfield property…[but] had remained chairman of FZE, which is a company of his son…”

So how did the court conclude that it was actually NS who laundered money to purchase the apartments and is thus liable for corrupt practices? It holds that a document from Al-Taufeeq proceedings (to which NS wasn’t party) “shows that the loan from Coomber was provided to Que holding by Hassan Nawaz, which further provided funding to Quint Paddington…Quint was also provided loan of 614,000 pounds by FZE in which accused [NS] was employee. These all acts show that the entire family daughter, sons and father are one and the same monolith. The accused Mian Nawaz Sharif cannot disassociate by oral assertions that he has got no connection.” There. They are all mixed up, so 10 years for NS.

What’s the case that leads to a seven-year jail term for Maryam? “Mr Radley has explained that [the] Calibri font was available for testing purposes etc and it was not available commercially… it is clear that it is not disputed that Calibri font was not commercially available before 31.01.2007.” Hence proved that “the trust deeds are filed to mislead the court and does not prepared (sic) on date noted in this deed.” As the deeds are bogus, “accused Maryam Nawaz was instrumental in concealment of properties of his (sic) father…” – thus guilty of aiding/abetting.

And why didn’t the court apply settled tests laid down by the SC to determine if a transaction qualifies as benami? Or why wasn’t a Sec 9(a)(v) offence under NAB Ordinance made out (both of which require prima facie evidence implicating the accused)? Simple: “This case has [a] different set of facts therefore distinguishable from usual cases of assets beyond sources.”

You may or may not wish NS and Maryam to rot in jail. But what Judge Bashir has produced is an embarrassment for all of us associated with the justice system. Will the sloppy use of law as a power tool entrench rule of law? Even if the elephant had to be shot, couldn’t it have been done with some grace that the gun and the shooter didn’t have to cut a sorry figure?

The writer is a lawyer based in Islamabad.

Email: sattar@post.harvard.edu