Panama Papers case

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Imran Khan Niazi v. Mian Muhammad Nawaz Sharif
Emblem of the Supreme Court of Pakistan.svg
Court Supreme Court of Pakistan
Full case name Imran Khan Niazi v. Mian Muhammad Nawaz Sharif
Decided July 28, 2017; 20 days ago (2017-07-28)
Citation(s) Constitution. Petition. No. 29 and 30 of 2016 and 03 of 2017
Ruling

Mian Muhammad Nawaz Sharif disqualified from holding office as The Prime Minister and as Member of National Assembly.

National Accountability Bureau ordered to initiate legal proceedings against the Respondent and his family according to Anti-Corruption Laws.
Court membership
Judges sitting Justices
Asif Saeed Khan Khosa
Ejaz Afzal Khan
Gulzar Ahmed
Sh. Azmat Saeed
Ijaz-ul-Ahsan
Case opinions
Decision by 5–0
Laws applied

Article 62(1)(f) of Pakistan Constitution Section 12(2)(f), 19(f) of The Representation of People Act, 1976

Section 99(1)(f) of Ropa Act

The Panama Papers case (officially titled Imran Khan Niazi v. Mian Muhammad Nawaz Sharif) or the Panamagate case was a legal case before the Supreme Court of Pakistan, heard between 1 November 2016 and 23 February 2017. The case was brought to court by Pakistan Tehreek-e-Insaf leader Imran Khan alleging money laundering, corruption, and contradictory statements by Nawaz Sharif, the incumbent Prime Minister of Pakistan, after the Panama Papers leak uncovered links between Sharif's family and eight offshore companies.[1][2][3]

The Court reserved its judgment on 23 February 2017.[4] The case has been described as the most publicized in Pakistan's history, as well as a "defining moment" for the country.[5][6] On 20 April 2017, the court announced the formation of a Joint Investigation Team (JIT) to probe the Sharif family's involvement in corruption as stated in the Panama leaks.[7]

On 28 July 2017 the Supreme Court of Pakistan disqualified Sharif from holding public office in a unanimous verdict.[8]

Background[edit]

Panama Papers leak case[edit]

The International Consortium of Investigative Journalists made 11.5 million secret documents, to be known as the Panama Papers, available to the public on 3 April 2016.[9] The documents, sourced from Panamanian law firm Mossack Fonseca, included details of eight offshore companies with links to the family of Nawaz Sharif, the incumbent Prime Minister of Pakistan, and his brother Shehbaz Sharif, the incumbent Chief Minister of Punjab.[10] According to the ICIJ, Sharif's children Maryam, Hassan and Hussain “were owners or had the right to authorise transactions for several companies”.[11] Mossack Fonseca records tied the children to four offshore companies, Nescoll Limited, Nielson Holdings Limited, Coomber Group Inc., and Hangon Property Holdings Limited.[12] The companies acquired luxury real estate in London from 2006 to 2007. The real estate was collateral for loans of up to $13.8 million according to the Panama Papers.[13]

Failure to constitute judicial commission[edit]

Prime Minister Nawaz Sharif

Facing growing criticism, Sharif announced the formation of a judicial commission under a retired judge of the Supreme Court of Pakistan, in a nationwide address on 5 April 2016. However, no commission was constituted after the consecutive refusals of former Justices Tassaduq Hussain Jillani, Nasir-ul-Mulk, Amir-ul-Mulk Mengal, Sahir Ali, and Tanvir Ahmad Khan.[14] Despite this, the federal government remained committed to forming a commission, negotiating its terms of reference with opposition parties Pakistan People's Party and Pakistan Tehreek-e-Insaf. In a second statewide address on 22 April 2016, Sharif announced he would resign if proven guilty.[15] The latter effort failed when Chief Justice of Pakistan Anwar Zaheer Jamali, while citing open-ended terms of reference and limited scope of the law in field, declined to form "a toothless commission, which will serve no useful purpose."[16]

Prime Minister's speech[edit]

In a televised address to the National Assembly of Pakistan on 16 May 2016, Sharif suggested forming a joint committee to draft the terms of reference for establishing a judicial commission. He said he was not afraid of accountability, while criticizing opposition figures, "Today, people living in bungalows and commuting in helicopters are accusing me of misconduct. Can they explain before the nation as to how they earned all this money and how much tax they paid?"[17] During his speech, Sharif claimed he would clear the air about the London flats, but did not return to the subject.[17] Instead he reiterated that the flats had been purchased with the money earned from the sale of Jeddah Steel Mills, which belonged to his father. Later, Sharif's omission of any reference to his family's business connections with the Qatari royal family during his 16 May speech invited allegations of contradictory statements.[18]

Opposition response[edit]

Following Sharif's speech, PTI chairman Imran Khan filed a petition through counsel Naeem Bokhari with the Supreme Court of Pakistan on 29 August 2016, seeking Sharif's disqualification as Prime Minister and as a Member of the National Assembly. Other political leaders including Sheikh Rashid Ahmed of Awami Muslim League, and Siraj-ul-Haq of Jamat-e-Islami, expressed support for the petition as well. The petition also moved against Sharif's children, son-in-law Muhammad Safdar, and in-law and incumbent Finance Minister Ishaq Dar. PTI workers also staged a sit-in outside Sharif's private residence at Raiwind near Lahore on 30 September 2016. Khan subsequently called on supporters to "lock-down" Islamabad until Nawaz Sharif "resigned or presented himself for accountability".[19]

Before the Supreme Court of Pakistan[edit]

Initial hearings[edit]

The Court's initial five-member bench for hearing the case was headed by Chief Justice Jamali and comprised Justices Asif Saeed Khan Khosa, Amir Hani Muslim, Sh. Azmat Saeed, and Ijaz-ul-Ahsan. The hearings began on a day-to-day basis from 1 November 2016. PTI leader Imran Khan was represented by Bokhari and Hamid Khan, whereas legal counsel for Sharif and his children comprised senior lawyers Salman Aslam Butt and Akram Sheikh. The Court also accepted additional petitions filed by other opposition figures, including Jamaat-e-Islami leader Siraj-ul-Haq and Sheikh Rashid Ahmad. In their reply, Sharif lawyers Butt and Shoaib Rashid informed the bench that though they owned properties abroad, Hassan and Hussain Nawaz has been running a business lawfully for decades, that Maryam Nawaz was not dependent on her father, nor was the beneficial owner of the cited offshore companies, Nielsen and Nescoll, but a trustee.[20] However, Justice Khosa requested counsel to satisfy the bench that the money had been earned and transferred lawfully.[20] The Court also questioned the quality of PTI's evidence, with Justice Saeed remarking that newspaper clippings were only good for "selling pakoras" the day after publication.[21]

Qatari letter[edit]

The Court observed that the letter written by Qatari royal Hamad bin Jassim bin Jaber Al Thani (pictured) "completely changed the public stand of the Prime Minister".

On 14 November 2016, Sharif lawyer Sheikh dramatically produced a letter written by Hamad bin Jassim bin Jaber Al Thani, the Prime Minister of Qatar from 2007 to 2013. The letter, marked private and confidential, read:

(My father Jassim) had longstanding business relations with (Sharif's father) Mian Mohammad Sharif which were coordinated through my eldest brother... Mian Sharif expressed his desire to invest a certain amount of money in the real estate business of Al Thani family in Qatar. I understood at that time, that an aggregate sum of around Dirhams 12 million was contributed by Mian Sharif, originating from the sale of business in Dubai (for four flats: 16, 16A, 17 and 17A Avenfield House, Park Lane, London, registered under the ownership of two offshore companies, while their bearer share certificates were kept in Qatar). These were purchased from the proceeds of the real estate business... I can recall that during his lifetime, Mian Sharif wished that the beneficiary of his investment and returns in the real estate business [should be] his grandson Hussain Nawaz Sharif.[22]

Justice Khosa observed that the document had "completely changed the public stand of the Prime Minister."[22] When asked why Sharif had not mentioned the Qatari letter in his 16 May speech, Butt replied, 'Those were not legal testimonials, rather mere political statements."[23] Expressing his inability at furnishing a "40-year-old" money trail, Butt further explained that business families at the time conducted transactions over parchis, slips of paper.[24] A second letter written by Al Thani was produced on 26 January 2017, clarifying that the "investment was made by way of provision of cash which was common practice in the Gulf region at the time of the investment. It was also, given the longstanding relationship between my father and Mr. Sharif, a customary way for them to do business between themselves."[25]

Fresh hearings[edit]

Following the superannuation and retirement of Chief Justice Jamali in December, a new bench headed by Justice Khosa was formed to hear the case afresh. The bench retained Justices Sh. Azmat Saeed and Ijaz-ul-Ahsan, while including Justices Ejaz Afzal Khan and Gulzar Ahmed. The Sharif family also reshuffled its entire legal team: Butt and Sheikh were replaced with counsels Makhdoom Ali Khan, Shahid Hamid, and Salman Akram Raja. The move came following widespread criticism over the team's handling of the case, as well as the Qatari letter's introduction.[26] On the petitioners' side, lead counsel Hamid Khan too recused himself from arguing the case, claiming, "I can contest a case in the court, but am unable to indulge in a media war" after media reports surfaced that the party was unsatisfied with his performance.[27] Thus fresh hearings resumed from 4 January 2017 with a reconstituted bench, new defence counsel, and a truncated petitioner's side.[28]

Petitioner's case[edit]

The PTI's case was relitigated entirely by Bokhari, alongside Maleeka Bokhari and Akbar Hussain. Bokhari referred to interviews by different members of the Sharif family, highlighting that each took divergent stands over the ownership of the London properties.[29] He argued that the Sharif family had failed to present any record regarding banking transactions, or refer to trust deeds or the Qatari connection earlier.[30] He maintained that Maryam Nawaz had declared her taxable income as zero in tax returns, and remained a dependent on her father. He added that Hussain Nawaz gifted Rs. 810 million to his father, without any of it being taxed.[31]

Bokhari also highlighted the National Accountability Bureau's failure to pursue its own reference filed against Hudaibiya Paper Mills in 2000, implicating the Sharif family and Ishaq Dar in money laundering in late 1990s.[32]

Defence case[edit]

Sharif's own lawyer Makhdoom Ali Khan appeared as lead counsel, assisted by Saad Hashmi and Sarmad Hani. Makhdoom quoted the Court's own decision on Article 62 (1)F of the Constitution, under which the petitioners sought Sharif's disqualification, as "a nightmare of interpretations and feast of obscurities."[33] Makhdoom distinguished the case from that of Yusuf Raza Gilani, who was disqualified as Prime Minister in 2012 for contempt of court. Dismissing the Gilani precedent, Makhdoom argued, “My Lords you need to look at the background and understand the context of this judgment.”[33] Regarding Maryam Nawaz's dependence status, Makdhoom maintained that her name was listed as the PM's dependent on tax forms because there was no other column on the sheet.[34]

To illustrate that it was not difficult to transport 12 million dirhams in cash, Hassan and Hussain Nawaz's counsel Salman Akram Raja placed novels War and Peace and The Brothers Karamazov on top of each other, demonstrating that the thickness of both books, amounting to over 3,000 pages, would be the same as two million dirhams in cash.[35]

FBR and NAB[edit]

The case shifted focus to the Hudaibiya reference, involving Ishaq Dar's confession "under duress".

Throughout the case, the Court raised queries as to the non-functioning of state institutions in pursuing the Panama affair. Muhammad Irshad, Chairman of the Federal Board of Revenue informed the Court that notices had been issued to 343 individuals following the Panama Papers leaks, and that Hassan, Hussain and Maryam Nawaz had responded to the notices. FBR lawyer Mohammad Waqar Rana admitted that no immediate steps had been taken in pursuance of the Panama scandal, arguing that separate laws and institutions were available for money laundering cases. "So in other words, what you are saying is that the FBR did not take any steps regarding money laundering?" Justice Gulzar observed. The FBR failed to satisfy the Court over actions taken. “Thank you very much for not assisting the court,” Justice Khosa admonished the FBR side.[36]

The NAB (National Accountability Bureau) was represented by Chairman Qamar Zaman Chaudhry and Prosecutor General Waqas Qadeer Dar. During their submissions, the case shifted focus to the Hudaibiya criminal reference filed by NAB earlier. The reference was based on a confession provided by Ishaq Dar in 2000, admitting to laundering $14.86 million for the Sharif family.[37] Dar had been placed under house arrest at the time by the military regime of Pervez Musharraf, and maintained the confession had been acquired under duress. The case was quashed by the Lahore High Court in 2014, when Dar was Finance Minister. "There are reservations regarding NAB's failure to register an appeal," the bench remarked. "When a criminal gets bail in a case of petty theft, NAB registers an appeal. This is a case worth millions and no appeal was registered," Justice Khosa observed.[37] Chaudhry restated his decision not to register an appeal. Justice Saeed warned the NAB team to "be prepared to face serious consequences."[38]

Attorney-General's submissions[edit]

The Attorney-General for Pakistan, Ashtar Ausaf Ali, was put on notice to assist the Court on 22 February 2017. Ausaf, with Asad Rahim Khan and Salaar Shahzaib Khan, submitted that anyone could file an appeal against the Lahore High Court’s decision in the Hudaibiya reference, let alone NAB. Justice Saeed commented that NAB had "died in front of us yesterday".[39] Ausaf further submitted that the Prime Minister did not have immunity in Code of Criminal Procedure cases under the Constitution. Ausaf was warned "not to become a party to the case" but assist the Court.[40]

Final submissions[edit]

Following Bokhari's rebuttal to the defence case, the petitioners appeared before the bench on 23 February 2017, including Imran Khan, Siraj-ul-Haq, and Sheikh Rashid Ahmad. The Court reserved its judgment on the same day.[41]

Verdict[edit]

The result of the case was announced at 2:00 p.m. PST on 20 April 2017. The Supreme Court, in a 3–2 decision, detailed that there is insufficient evidence to order Nawaz Sharif's removal from office, but ordered further investigation into corruption allegations. The Court ordered the formation of a Joint Investigation Team (JIT) under a three-member special bench, which was later known as JIT implementation Bench. The two dissenting judges on the bench, Justice Asif Saeed Khosa and Justice Gulzar Ahmed, were of the opinion that Prime Minister Nawaz Sharif had not been honest to the nation and should be disqualified from office.[42]

“The secret of a great success for which you are at a loss to account is a crime that has never been found out, because it was properly executed”
—The opening statement of the detailed Panama Case verdict; quoting French novelist and playwright, Honoré de Balzac.[43]

The aforementioned Panama Case JIT had powers to investigate all respondents, and related parties, including the prime minister. Moreover, the JIT was ordered to complete its investigation within 60 days and present its findings to the Supreme Court after every 15 days.[44]

The detailed, 540-page long verdict of the case was released later on April 20, 2017. It was primarily authored by Justice Ejaz Afzal Khan and was noted for its harsh criticism of state investigative institutions, NAB and the FIA, as well as the government for their handling of the Panama Papers leaks.[45] It also chastised the defendants for not being 'completely honest with the court'.[46]

Joint Investigation Team[edit]

Members[edit]

As per verdict of supreme court of Pakistan a three-member special implementation bench was made to supervise the JIT. This three-member bench was headed by Justice Ejaz Afzal Khan and would include Justice Sheikh Azmat Saeed and Justice Ijazul Ahsan. The Joint Investigation Team (JIT) was formally constituted by the Supreme Court's Panama Case implementation bench on 6 May 2017. It comprises 6 members, with the head being from FIA:[47][48]

Name Organization Post
Wajid Zia Federal Investigation Agency Additional Director General (Immigration)
Ameer Aziz State Bank of Pakistan Managing Director (NIBAF)
Bilal Rasool Securities and Exchange Commission of Pakistan Executive Director
Irfan Naeem Mangi National Accountability Bureau Director General (NAB, Balochistan)
Brigadier (r) Nauman Saeed Inter-Services Intelligence Director (Internal Security)
Brigadier Kamran Khurshid Military Intelligence

Authority and functioning[edit]

The JIT members was given the authority to engage and associate local and/or foreign experts to facilitate the investigation of Sharif family's offshore assets. The team also received all powers granted by laws relating to investigation, including those available in the Code of Criminal Procedure, 1898, National Accountability Bureau Ordinance, 1999 and the Federal Investigation Agency Act, 1975. The directive also stated that, since the JIT in essence and substance is acting on the directions of the Supreme Court of Pakistan, all executive authorities across Pakistan must assist and cooperate with the team.[47]

The JIT team's functional headquarter was in the Federal Judicial Academy, Islamabad, with a working budget of Rs. 20 million. The team was required to submit reports of its finding to the Supreme Court on a fortnightly basis. Furthermore, the JIT was to complete its investigations within 60 days of formation.[47]

Scope of investigation[edit]

The scope of the JIT's investigation included the following ten points, as outlined by the Special Bench of the Supreme Court:[49][50]

  1. How did Gulf Steel come into being?
    1. What led to its sale?
    2. What happened to its liabilities?
    3. Where did its sale proceeds end up?
    4. How did they reach Jeddah, Qatar, and the UK?
  2. Whether respondent numbers 7 and 8 (Hussain and Hassan Nawaz Sharif), in view of their tender ages, had the means in the early nineties to possess and purchase the London flats?
  3. Whether the sudden appearance of al-Thani's letter is a myth or reality?
  4. How bearer shares crystallized into the flats?
  5. Who, in fact, is the real and beneficial owner of Nescoll Limited and Nielsen Enterprises.
  6. How did Hill Metals Establishment come into existence?
  7. Where did the money for Flagship Investment Limited and other companies set up/taken over by respondent number 8 (Hassan Nawaz Sharif) come from?
    1. Where did the working capital for such companies come from?
  8. Where do the large sums, running into millions, gifted by respondent number 7 (Hussain Nawaz Sharif) to respondent number 1 (Nawaz Sharif) drop in from?

JIT report and recommendations[edit]

Despite controversies, On 10 July 2017, JIT submitted a 275-page report[51][50] in the apex court. The report requested NAB to file a reference against Sharif, his daughter Maryam, and his sons under section 9 of National Accountability Ordinance. JIT noted that Sharif, his sons and daughter Maryam Nawaz were not able to justify their income and assets, adding that Maryam Nawaz has been proved the beneficial owner of Nielsen and Nescoll.[52] The report further stated that Maryam was involved in falsifying evidence before the Supreme Court. The basis for this fact was the use of the font Calibri in documents showed to be from 2006, when the font itself wasn't publicly released until January 2007.[53][54] Among other critical findings of the JIT are the discovery of an offshore company, FZE Capital, managed by Nawaz Sharif until 2014,[55] and the complete lack of supporting documentary record in the United Arab Emirates relating to the sale of Gulf Steel Mill. The Mill is important to the case as it forms the basis of the 'Qatari letter' money trail.[56][57]

Final verdict[edit]

Following the submission of the JIT report[58] to the court on 10 July 2017, the Supreme Court began hearing arguments from the petitioners and the respondents one week later. On 21 July 2017, the court concluded the hearings and reserved its judgement.[59] On 28 July 2017, the court announced its decision and disqualified the Prime Minister from holding public office as he had been dishonest in not disclosing his employment in the Dubai-based Capital FZE company in his nomination papers.[60] The court also ordered National Accountability Bureau to file a reference against Sharif, his family and his former Finance Minister Ishaq Dar against corruption charges.[61][62][63][64]

After the verdict[edit]

The Following the verdict of the apex court, Nawaz Sharif was disqualified from serving as the Prime Minister, and as the leader of the National Assembly.[65] The NAB was ordered by the court to investigate corruption charges against Sharif, his three children and his son in law.[66].

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