Drawing parallels between two important cases
As the Panamagate case enters its final phase, Advocate Shahid Hamid, the counsel of Maryam Nawaz, Captain (retd) Safdar and Ishaq Dar, is all set to conclude his arguments on Monday. With full comprehension of the matter being sub-judice before the highest court of the land, Pakistan Today has decided to revisit the infamous SGS-Cotecna reference against former President Asif Ali Zardari and two-time former Prime Minister Benazir Bhutto and draw parallels between both cases.
The gist of the allegations as set out in the infamous SGS-Cotecna reference by Ehtesab Commission is that Benazir Bhutto, Asif Ali Zardari, A R Siddiqui, ex-Chairman CBR and others abused their authority as holders of public office in collusion with each other and with M/s Societe General De Surveillance SA (“SGS”) and Cotecna by granting both companies ‘Pre-shipment Inspection Contract” in consideration of illegal gratification, pecuniary advantages, commission and kickbacks received in bank accounts of offshore companies operated by Jens Schlegelmiclch namely Bomer Finance Inc, Mariston Securities Inc and Nassam Overseas Inc, of which they were the beneficiaries.
However, the case lingered on for 13 years, up till 2011, when all accused were acquitted except former President Asif Ali Zardari who enjoyed constitutional immunity as he was president then. Zardari was acquitted in November 2015 by an accountability court.
Both cases share some similarities. They revolve around high profile political figures, payments made through offshore companies, allegations of concealment of facts and non-declaration of assets.
However, the differences are stark too. Where SGS-Cotecna was a criminal case, the Panamagate case is essentially a civil petition before the SC, whereas allegations in SGS-Cotecna were about taking kickbacks, the Panamagate case revolves around money-laundering, tax evasion and misuse of authority.
The SGS-Cotecna is considered by many as a landmark where a precedent was set that where financial corruption, money-laundering, kickbacks and unlawful pecuniary gratification are involved, it will be dealt with in a procedural manner by institutions entrusted with accountability like National Accountability Bureau, FIA and others.
The Supreme Court of Pakistan took up the matter of Panama Papers in its extraordinary jurisdiction under Article 184 (3), commonly known as suo motu, in the aftermath of Panama Leaks, documents pertaining to offshore companies of global elite.
A new paradigm shift has occurred in the judicial history of Pakistan as previously such matters were investigated and probed into, and after a declaration by relevant authorities the matter was brought forward before the SC.
However, the Supreme Court, this time around, didn’t rely on the traditional method and took up the allegations pertaining to tax evasion, money-laundering, misuse of authority, non-declaration of assets and concealment of facts against the Sharif family under Article 184 (3).
With both petitioners and respondents filing plethora of documents and the bench struggling to ‘dig out the truth’, as Justice Khosa remarked during a hearing, many top jurists are of the opinion that due to technicalities of procedure involved and the primary jurisdiction of Supreme Court as a constitutional and appellate court remaining intact, it is yet to be seen as to how it undertakes to inquire and investigate intricate matters that include recording of evidence and trial.
‘One aspect why SGS-Cotecna case, other than the political implications, couldn’t be contested properly was that the cost involved was huge. The payments of the lawyers, fees for hiring agencies and investigation for probing the matter was so extensive that the government backed out,’ confided a senior lawyer privy to proceedings on condition of anonymity.
