As any student of law, I also believe that judges exist to interpret the law with guidance from lawyers and implement it with the help of the Constitution. However, it seems that the judgment drafted by Judge Muhammad Bashir does not seem to engage the above criteria. The individuals who want to quote the law and foster legal reasoning, rather than establish arguments via media trial, will not find anything valuable in the judgment. It adds nothing to what has been said in the media previously indicting ousted Prime Minister Nawaz Sharif.
Legal jargon like ‘formalism’ and ‘legal realism’ was established for such instances, the motivation behind which was to have the capacity to foresee lawful results with conviction. Hence, the rule of law should be differentiated from the rule of people as it enables one to anticipate legally legitimate results by applying statutory writings, judicial precedent and legal tests to each case individually.
Advocates of legal realism came up with the ‘bad man’ theory of law and stated that bad men are not worried about the ethical quality or rationale of law but only the eventual results it will create for them. HLA Hart also mentioned this theory in The Concept of Law, where he stated that if the judges were expected to apply legal reasoning in their judgments, then the distinction between the rule of law and the rule of men would cease to exist.
The way in which Nawaz Sharif and Maryam Nawaz have been sentenced by the Supreme Court, followed by Judge Muhammad Bashir’s judgment, will haunt the corridors of law for a very long time because of the exceptional nature of implementation of the law. If we apply the ‘bad man’ theory to this particular case, we would know that Sharif and his daughter were deemed to be convicted as the media had already started a systematic movement against them to influence public opinion of the masses who then expected the same sort of decision by the courts.
The phenomenal thing about the latest decision is that it seems to lack lawful thinking and depends solely on fictional and utopian ideology. As a matter of fact, it is clear that courts cannot solely rely on investigative reports or opinions provided by investigation officers, but Judge Bashir came up with a concept against it and held the following:
“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.”
According to the judgment, Nawaz Sharif neither owns the apartments nor has any link with the properties. As a student of law, it is hard for me to understand how the court declared him the owner and thus found him to be living beyond the means of a public office holder. The only reasoning provided by the judge is an interview of Sharif’s son, Hussain Nawaz, stating that they lived in the apartments from 1993 onwards.
This presumptuous and legally ill document further stated the following:
“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.”
Furthermore, it states that the children could not buy the apartments on their own and thus Sharif ‘must have’ provided the assets that he didn’t legitimately have – making him a benami proprietor. The court neither confirmed the dates of ownership of various flats nor clarified why it ignored the accommodation supported by the children’s grandfather. Benami ownership in such cases has also been seen to be linked to the patriarchal structure of our society, irrespective of the law and legal reasoning. The court also stated that it was hard to find the actual owner of the offshore companies.
The question now is, what triggered the seven-year imprisonment for Maryam Nawaz? “Mr. Radley has clarified that Calibri font was accessible for testing purposes and so forth and it was not accessible monetarily” – demonstrates that the trust deeds were documented to delude the court. As the deeds were considered to be false, Maryam Nawaz was considered instrumental in camouflaging properties of her father and subsequently blameworthy of aiding the crime.
For what reason did the court not apply settled tests laid down by the Supreme Court to decide whether a transaction qualifies as benami? Similarly, why was Sec 9(a)(v), an offence under the NAB Ordinance, applied? Does it not require evidence before implicating the accused? One might argue that the judgment seems to be extremely politically motivated and bypasses the constitutional and legal course of dealing.
The judgment may or may not come as a celebration for us, but as a law student I feel that it is quite embarrassing for everyone associated with the legal fertility. Will the messy utilization of law for political gains ever ensure the rule of law in our system? Or will the ‘bad man’ theory continue to haunt us for a longer period of time?
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