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Saturday, April 30, 2016

Guilty until proven innocent - Panama Leaks & PM Nawaz Sharif

Instead of taking the high road, using the opportunity to deal pragmatically with the "Panama Leaks" explaining how and why his family's offshore companies and accounts thereof had come into existence, PM Mian Nawaz Sharif (MNS) seriously disappointed the nation by choosing to go the "fog of politics" route. Instead of exercising good sense he spent the better part of his April 22 televised speech alternatively feigning innocence and being belligerent about what is an international expose and not a home-grown conspiracy as he and his aides insist on implying. By clear inference, if not by name, he targeted Imran Khan, the Army and the Judiciary in that order. Going after Shaukat Khanum Hospital, which is doing a magnificent work in bringing cancer treatment within the reach of the common man, was in bad taste. Some of MNS' aides don't have either good taste or good manners but MNS himself is a decent human being and so are a fair number of his aides, why are they being vociferously "more loyal than the king"?

The normal principles of justice requires concrete evidence before someone can judge anyone guilty but for someone who is the holder of the highest executive public office, the onus for proving his innocence lies with him in the same manner as for Britain's PM David Cameron, MNS's continued inability to explain the expensive flats in London and the money trail leading to them is damning. As would be expected from the executive head of a government, Cameron swiftly laid everything before Parliament to weather the storm, the Musharraf-created extenuating circumstances post-1999 one can understand, the offshore companies and accounts funded pre-1999 remains unexplained. The phenomenal increase in MNS's net worth over the last three years after declaring meager tax returns for years is also inexplicable.

The Terms of Reference (ToRs) in the letter MNS wrote to the Chief Justice (CJ) Supreme Court (SC) studiously avoided mentioning the raison d'etre, the Panama Leaks. The silence in the ToRs is deafening. MNS asked for investigating every conceivable financial corruption under the sun since 1947, including non-performing loans (NPLs), such an inquiry should take about 50 years, give or take a few years.

Prima facie the evidence about wrongdoing is sufficient for NAB or FIA to take suo motu action, both have the expertise to legally carry out requisite investigation. With the government in power wielding enormous influence on FIA, and even NAB to an extent, investigators will hit a brick wall every step of the way, and if not, a brick wall will hit them. The "Client-Patron" nature of the relationship makes it difficult even in truly democratic jurisdictions like the US, UK, EU, etc, for the State machinery to incriminate those in power to whom they owe "allegiance", facts will be deliberately distorted and/or denied. In writing the letter to the Supreme Court, MNS has inadvertently accepted the controversy is surrounding his public office as PM; can he legally exercise the PM's executive powers till he should be cleared? Impending government paralysis notwithstanding, a more credible approach is to temporarily step aside for a neutral caretaker regime comprising of non-party technocrats at both the Federal and Provincial levels in place for the duration of the enquiry.

MNS has been down the route before, the precedent for overcoming the Constitutional hiatus legally exists in the form of General Waheed Kakar's formula. Serious differences in 1993 between MNS and President Ghulam Ishaq Khan led to open political and administrative confrontation and possibly a civil war between the Federal government and Punjab. Refusing to declare Martial Law, the "Kakar Model" of a strictly neutral stance persuaded both to resign from office. A caretaker government was appointed and the National and Provincial Assemblies dissolved. This time around there is no need to dissolve the Assemblies, they could be held in abeyance until a proper inquiry is completed under the aegis of the caretaker regime. MNS' televised address came after General Raheel Sharif symbolically made good on his promise of a few days earlier when he called for uprooting corruption and "across the board accountability" by sending home 13 high-ranking serving military officers, among them one Lieutenant General, one Major General, five Brigadiers, three Colonels and a Major on corruption charges. Some more sackings are expected.

Replicating Pakistan's "Kakar Model" in 2007, both the Bangladesh President and PM stepped aside and a CT government was installed to stymie the chaos that preceded 11th January 2007. A new Election Commission (EC) was also put in place. Not one military person joined the government or bureaucracy. Concrete steps were taken to purge Bangladesh of the corrupt, the 'untouchables' included ministers, lawmakers, party leaders, civil servants and businessmen, etc. As time went on, temptation set in, a handful in the senior military hierarchy of the Bangladesh Army (including disappointingly the CoAS, General Moeen Ahmed, someone for whom I developed a lot of respect during my conversations with him pre-2007, who let his brothers run riot (shades of Kayani)), got labelled with corruption themselves. This destroyed the credibility of the temporary "doctrine of necessity" exercise. To their credit, the caretaker government itself remained clean and the EC did a superb job, arranging free and fair elections on the strength of major electoral reforms which ensured that corrupt candidates could not take part in the elections.

The Sharif rubberstamp President can be manipulated at will and must also temporarily go "on leave", so must the Senate President being a dedicated party man blind to Zardari's corruption. The serving CJ can take oath as Acting President and nominate a retired judge to head the caretaker regime. All political appointees in government/semi-government posts must also go on temporary leave. The caretaker regime must carry out an impartial investigation into the allegations about the Sharif family, the forensic audit focusing on the world's major offshore financial centres, mainly British dependencies and territories. With a timeline to conduct the investigations, the Commission can call on foreign experts, forensic auditors/accountants, foreign lawyers, bankers, etc for help. MNS and others can come back to power if their enquiries find no wrongdoings.

Asma Jahangir contends that "accountability at the cost of democracy is unacceptable", that should translate into something close to Zardari's heart, "unfettered corruption being the cost of democracy is acceptable". Facing revelations of money-laundering that have not as yet been credibly explained, MNS is "prima facie" guilty until proven innocent. He must do the right thing while he can, tomorrow might be too late.
By Ikram Sehgal, defence and security analyst

http://www.brecorder.com/articles-a-letters/187:articles/41688:guilty-until-proven-innocent?date=2016-04-29