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Muddled Positions

The Broadsheet award is said to have exposed the extent of the Sharif family’s corruption by identifying vast properties spread across many countries.

By Shahrukh Mehboob | March 2021

Muddled-Positions

When General Pervez Musharraf seized power in October 1999 after overthrowing the government of Prime Minister Nawaz Sharif, one of the first tasks that he undertook was to promulgate the National Accountability Bureau Ordinance. For its intent and purpose, the NAB Ordinance was a remarkable piece of legislation in the law-making history of Pakistan. NAB is an auto-nomous apex body meant to root out corruption from the Pakistani politics.

Untethered from constraints of the judiciary and unaccountable in any real sense to any other institution in the dispensation of its brand of accountability, NAB is today riding roughshod over politicians, bureaucrats and people from many other walks of life. The law in its present form allows NAB a level of discretion that automatically translates into selectivity in the application of these powers. Indeed, it is not surprising that opposition leaders are facing the brunt of this accountability while various people associated with the ruling alliance facing similar accusations enjoy the fruits of unfettered freedom. The hounding and arrests of many bureaucrats on such charges leading to near-paralysis in decision-making is a case in point. Selectively amending the NAB Ordinance is plainly wrong.

The Broadsheet award is now being used to turbocharge partisan narratives regardless of the exact findings contained in the document. At the heart of the new offensive from the PTI government is their argument that the Broadsheet award has exposed the extent of the Sharif family’s corruption by identifying vast properties spread across many countries and a whopping 820 million dollars. To understand the situation, let us take a quick overview of the Broadsheet award. It contains two main documents: (a) Part Final Award (Liability Issues), (b) Part Final Award (Quantum).

In the first document, the arbitrator explains the dispute between Broadsheet LLC (Claimant) and the Islamic Republic of Pakistan/National Accountability Bureau (Respondent), and then lists the reasons why Broadsheet’s claims are correct. In essence, the document spells out the legal reasoning for why Broadsheet has won the case and Pakistan/NAB has lost. In the second document, the arbitrator explains how he has determined the amount of money that Pakistan/NAB must pay to Broadsheet. The arbitrator explains that in order to calculate the damages that NAB was required to pay Broadsheet, it had to be determined how much Broadsheet would have earned from its services to NAB had its contract not been terminated. The arbitrator has already established in the first document that NAB’s termination of the contract with Broadsheet in 2003 was illegal.

For purposes of the valuation of the Sharif family properties, experts were called in. Broadsheet brought two such experts working for a consulting firm called Stroz Friedberg (SF). They produced a report in 2018 that listed the Sharif family properties and valued them at 820m dollars. This is the figure that the three cabinet ministers mentioned in their press conference while saying that the experts had identified these properties. Here’s where the ministers may have not been entirely accurate. The Part Final Award (Quantum) says on page 32: “Stroz Friedberg was instructed to carry out a ‘forensic audit’ (or ‘inventory’) of the JIT Report. This consisted of identifying potentially recoverable assets of the Sharif family that were referred to in it and ascribing a valuation to each. This resulted in a list of 76 items of property in three overseas jurisdictions.” The key difference was between what the cabinet ministers are saying and what the award has written. The award states clearly that the 76 properties identified and valued at 820m dollars were based not on any independent investigation by these international experts, but on the report of the Joint Investigation Team (JIT) which was prepared for the Supreme Court of Pakistan. In other words, the Broadsheet award on the Sharif family properties is not a new revelation but just a forensic audit of the JIT report.

Broadsheet has benefited from the amount linked to all properties owned and declared by the Sharif family and Pakistan/NAB has had to pay this amount.

Based on the assessment of experts from both sides (SF from Broadsheet and FTI from Pakistan/NAB), the arbitrator gives his own comments on page 34: “The SF does not purport to identify assets currently held by members of the Sharif family; rather, it lists items of property which have been held by or attributed to them over a period of twenty years or more. One result of this is that, as Respondents’ expert witnesses have pointed out, the list may include both the funds used to purchase a property asset and the property asset itself; or the value of shares in a property-owning company as well as the property it owns; or the value of a property that has been sold together with the value of other property bought with the proceeds.”

The arbitrator wrote on page 35 of the award: “This evidence, in my view, does not support a claim that there is, or was, an asset worth US$160 million in his possession which NAB could have recovered from him, or could recover now, without further evidence linking that sum to cash or property assets which can or could have been seized…”

It is clear from this award that the arbitrator or the experts have not conducted any fresh investigation and discovered any new properties of the Sharif family as being claimed by government ministers today. The award given to Broadsheet, as far as the Sharif family is concerned, is based on the JIT report and its listing of all Sharif family properties.

Declared and undisputed properties cannot become part of claimed recoveries.

However, Broadsheet has benefited from the amount linked to all properties owned and declared by the Sharif family and Pakistan/NAB has had to pay this amount to Broadsheet. That’s the figure that Broadsheet presented, and not the government of Pakistan. So, in essence, the government of today is saying that the government in 2018 was wrong and Broadsheet was right. This becomes even stranger when we look at the appeal.

The government of Pakistan appealed this award of 100m dollars, as it should have. The appeal hearing was conducted on June 28, 2019, between the Government of Pakistan/NAB versus Broadsheet. On this date, PTI was the government of Pakistan. In other words, the ministers of the PTI government are today citing the figure of 820m dollars as evidence of Sharif family corruption whereas the lawyers of the PTI government were arguing two years ago that the final figure cited 100m dollars which was too much. The PTI government might want to reconcile these two contradictory positions if that is possible.

It is worth recalling Antonio Gramsci’s exhortation to civil society to be intellectually pessimistic but with a will that is optimistic. Legal protections, however sacrosanct, are inadequate to preserve liberties in a society that values outcomes over due process and is happy to sacrifice the outcome of that value over due process and is happy to sacrifice procedural safeguards at the altar of expediency. Until we value the ideals of democracy and liberty, we shall forever remain shackled, not only deprived of the rights afforded to us by the constitution but also unable to gain our rightful place in the comity of nations.

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