Burden of fairness

The Islamabad High Court’s judgment releasing Nawaz Sharif pending adjudication of his appeal lays bare infirmities in the accountability court order that convicted him.

The IHC judgment would have been unremarkable had it not involved NS, who was thrown out as PM by the Supreme Court without trial and based on the tentative view of judges that he was dishonest. This case reminds one of Dworkin’s ‘hard cases’ that aren’t hard due to complex legal questions being involved but make bad precedents due to consideration of their consequences influencing the outcome (otherwise regarded as extraneous considerations).

The IHC judgment is a treat to read, not for its literary value but because it reads as reasoning of a boring judicial order ought to. There is no grandstanding or moralising. There is nothing that reveals the personal views or partisan inclinations of the judges. There is nothing about judges being saviours. It simply records the arguments of both sides, considers the arguments based on material available on case file, and juxtaposes legal arguments against relevant tests laid down by the SC. Based on the evidence recorded, the reasoning of the accountability judge and case law, it concludes that the conviction, prime facie, doesn’t seem sustainable.

WhatsApp zealots have suddenly realised that our justice system is broken. The argument is simple: a system that doesn’t punish NS whom ‘everyone’ knows to be corrupt is rotten. We all ‘know’ that the Sharif family owns these apartments since the 90s. They have failed to provide a money trail. The burden of proof is on them to establish their innocence. As they have failed to do so, they should be locked up forever. (The part left out of the formal argument is that corruption is now a national security matter and, as the Sharifs are corrupt and as NS and Maryam can’t be trusted, their release is against national interest.)

The reaction to the IHC’s well-reasoned judgment shows not just how polarised we are on a partisan basis but also how rudimentary our understanding of rule of law and due process is. If one man shoots another in front of witnesses, admits that he has killed the other man and hands over his gun to the police along with a confession statement, will he be subjected to a trial or be rushed to the gallows straightaway as everyone knows what happened? Musharraf’s admission that he abrogated the constitution is on record. Everyone knows what he did and also what Article 6 says. Why then are we trying him?

Many who objected to how NS was being subjected to Article 184(3) proceedings in the SC (while simultaneously being tried in the media) might have had no love lost for NS or the PML-N. At issue for proponents of rule of law was the fairness of our justice system and its adherence to entrenched jurisprudential principles, and not the fate or fortune of NS. Why inscribe Article 10A into the constitution, which declares right to due process and fair trial as an inalienable right, if courts can choose to slap penal consequences without trial? What becomes of legal certainty, which lies at the heart of rule of law, if precedents can be disregarded at whim?

The concept of natural justice is almost as old as that of justice. The words of Lord Hewart have been repeatedly quoted by our superior courts that, “it is not merely of some importance, but of fundamental importance, that justice should not only be done, but should manifestly be seen to be done.” The principle of natural justice includes the right to be heard, and to be heard by an impartial arbiter of law. Lord Denning emphasised the importance of impartiality when he stated that, “justice must be rooted in confidence and confidence is destroyed when right-minded people go away thinking: ‘the judge was biased.’”

Once the SC ousted NS, and opinions of individual judges containing moral strictures in flowery prose were published and repeated by the media with relish, it was obvious to all and sundry that his goose is cooked. Many who believed that the accountability court would convict NS and Maryam didn’t form such opinion on the basis of deep appraisal of the evidence or applicable case law. The argument was based on the conventional wisdom that if a PM finds himself removed in an election year, and painted black in full public view, he won’t be allowed back on the saddle.

The manner in which the accountability trial was conducted didn’t infuse much confidence regarding the impartiality of our justice system (to put it mildly). The accountability court judgment was bereft of reasoning. The question then was whether the IHC would be another cog in the wheel or whether it would discharge its constitutional obligation to act as an independent arbiter and subject the trial court’s order to scrutiny. That the IHC has been oblivious to the transient emotion of the day calling for a witch-hunt or the conventional wisdom that once the SC has spoken all courts will fall in line, reaffirms faith in the possibility of judicial independence.

The IHC has not tweaked existing law or crafted new principles. It has applied to the facts of this case the relevant tests laid down by the SC. The IHC cites the Khan Asfandyar Wali case where the SC held that the onus in NAB cases does shift to the accused to disprove the presumption of guilt, but only after the prosecution succeeds in establishing preliminary facts that create such presumption. Reversal of burden of proof is a deviation from the foundational principle of criminal law that everyone is innocent until proven guilty. While NAB law’s presumption of guilt disregards the principle, it doesn’t divest the prosecution of all responsibility.

The IHC also quotes from the Ghani-ur-Rehman case, which contains the relevant test for 9(a)(v) purposes. There are at least three things the SC has said: one, there is need for prosecution to quantify the known sources of income of the accused at the relevant time; two, there is need to establish that the known sources of income as quantified can’t account for the asset in question (which then requires quantification of the asset price at the relevant time); and three, where the prosecution alleges accumulation of assets by abuse of authority, it should establish a nexus between abuse of authority and accumulation of wealth.

In this case, the prosecution led no evidence on when the property was acquired. It claims that it was acquired somewhere between 1993 and 1996, which the Sharif family denies. There is no proof of ownership from that period. The prosecution also didn’t quantify the known sources of income for NS in the period from 1993-1996 or the value of the property at the time to establish that the asset was disproportionate to the means of income. The prosecution also led no evidence to establish that NS was in fact the guardian of his children at the time and supported them financially to make them his dependents and benamidars.

The question of nexus between abuse of authority and accumulation of assets doesn’t arise anymore as NS has been acquitted on the charge of corruption. And that part of the accountability court judgment has attained finality as NAB chose not to appeal it. The IHC also identifies the failure of accountability court to address objections to acceptance of key documents against principles of the law of evidence (which the accountability court had done on the basis that they came from the SC-constituted JIT and were thus unobjectionable). And, finally, that if the assets were acquired from 1993-96, how did Maryam aid and abet at that time?

History’s judgment on the role of our judiciary is unflattering. Starting from the Maulvi Tamizuddin case in 1954 to Bhutto’s hanging and all the way to the Zafar Ali Shah case in 2000, our superior judiciary sided with usurpers when they annexed power and supported the constitution when expediency permitted supporting it. History remembers Justice Samdani who granted bail to Bhutto and also Maulvi Mushtaq – but in different terms. It celebrates Dorab Patel and condemns Chief Justice Munir, even though Munir was probably the smartest jurist we produced. But history focuses on his lack of integrity and not his genius.

How will history judge the jurisprudence being produced in our time?

The writer is a lawyer based in Islamabad.

Email: sattar@post.harvard.edu