I am no expert on the law of Pakistan but I felt compelled to investigate further when I heard of the Supreme Court of Pakistani’s decision to declare the twenty-eight Pak-Turk Schools in Pakistan to be terrorist entities and for these schools to be transferred to the Turkish government’s Maarif Foundation. I located the “not approved for reporting” 25-page Supreme Court decision. Having read that, I then turned to the 200-paged Constitution of the Islamic Republic of Pakistan. To give me some context, I also did some reading on the Supreme Court’s previous rulings. I looked into the Court’s decision to disqualify the then-Prime Minister of Pakistan Nawaz Sharif from holding public office for life.
Having studied this material, I penned the following letter explaining why the Supreme Court’s decision is an affront to the rule of law. Simply put, the Court did not offer a single piece of evidence to justify its decision to proscribe PTIEF or to transfer its twenty-eight schools to Maarif. If you do not believe me, please read on and see for yourself.
While this is a grave injustice, it is also the best form of reasoning for the worst-type of outcome: after all, would we have preferred that the ruling was based on actual wrongdoing of any kind, for which there would be some evidence.
Supreme Court decision dated December 13, 2018
Constitution Petition No. 66 of 2018
Re: Decision to proscribe PTIEF as a terrorist organisation and to transfer all assets to TMF
I am writing to state my shock at both the outcome and the reasoning of the Supreme Court of Pakistan’s decision in the aforementioned petition. Not only has the Supreme Court ruled that an organisation serving the people of Pakistan with twenty-eight schools with a modern curriculum is, in fact, a terrorist organisation but that it has done so without putting forward a single piece of evidence to justify its decision. This is not a legal but political decision, which amounts to an abrogation of the Supreme Court’s role and responsibility as set out by the Constitution of the Islamic Republic of Pakistan, for the following three reasons.
1. The fundamental basis of the Supreme Court’s decision has no legal status and is grounds for recusal.
The petition asked the Court to proscribe the Pak-Turk International Education Foundation (PTIEF) as a terrorist organisation and to transfer all of its assets, including twenty-eight schools run by PTIEF, to the Turkiye Maarif Foundation (TMF). To grant this petition, the Supreme Court must appraise the evidence and decide that it surmounts the appropriate burden of proof. What is incredible is that in the twenty-five-page ruling, the Supreme Court has not pointed to a single piece of evidence that proves the alleged crime. Instead, the fundamental basis of the Supreme Court’s decision was stated as follows:
it is fundamentally important to ensure brotherly relations between Pakistan and Turkey […] It is therefore imperative that no steps are taken that may imperil such a relationship or cause any manner of doubt in the minds of the Turkish people or their Government about the unqualified and unconditional support that the Government and people of Pakistan wish to extend in their struggle against all forms of terrorism in Turkey (para 11).
The above is not evidence; it is not even a legal argument but a political statement, which amounts to grounds for recusal. The imperative “that no steps are taken that may imperil such a relationship” must include the Supreme Court’s capacity to reject the petition as this would cause “doubt in the minds of the Turkish people and their Government about the unqualified and unconditional support” of Pakistan towards Turkey. This imperative must be binding on the Supreme Court because it is included in the decision and is stated in the absolute without any qualification. The so-called imperative of Pakistan towards Turkey on the one hand and the presumption of innocence and due process on the other are in fundamental conflict here. While the practice of the Supreme Court of Pakistan may allow it to consider political alliances and interests of the Government of Pakistan, it cannot do so in the context of appraising criminal allegations and decisions that impinge upon the fundamental human rights of those concerned. That it has admitted to doing just that is an affront to the rule of law in general and its obligations as set out in the Constitution of the Islamic Republic of Pakistan in particular.
2. The Supreme Court deferred to the decision of (foreign) governments.
Based on that imperative, the Supreme Court relies on three subsidiary arguments to grant the petition which alleges that PTIEF is a terrorist organisation. First, on the basis that the Government and Courts of Turkey have arrived at this conclusion (para 4, see also 11). Second, on the basis that the Government of Pakistan “fully, unconditionally and without qualifications, endorses and supports the Turkish decision on FETO” (para 13, see also para 8). Third, on the basis that the Organization of Islamic Cooperation (OIC), the Asian Parliament Assembly (APA), and forty unspecified Asian governments have allegedly recognized FETO (para 4, 5, 6, 17 and 19). Paragraph 4 claims that the Government of Pakistan “is bound” by the OIC declaration which calls on its member states to take measures against “FETO entities.”
The Supreme Court is the highest court of the land. It has the power to overrule any court in Pakistan as well as the responsibility to hold the Executive branch of government to account as per the powers conferred upon it by Articles 184(3), 187(2) and 190 of the Constitution. It is on this basis that the Supreme Court disqualified incumbent Prime Minister of Pakistan Nawaz Sharif from holding public office for life. This power of oversight necessitates that the Supreme Court hears and appraises the evidence for itself before arriving at its decision. That means that it cannot treat the statements of the Government of Pakistan, or any other government, as conclusive proof of the matter under contention. It must look to the evidence itself; it cannot “subcontract” that responsibility to some other body, government or court. However, as you can see from the arguments above, that is precisely what it has done. It treats the statement of the petitioner as conclusive proof of the matter alleged within the petition.
To the question, why does the Supreme Court consider PTIEF to be a terrorist organisation, we get the following reply: because “the Government of Pakistan fully endorses and supports the decision of the Turkish Government on FETO, and acknowledges the decisions/resolutions of the OIC, we are of the view that the case of the petitioner stands fully established” (para 23). Why does the Supreme Court not appraise the evidentiary basis of the Turkish government and/or court decisions itself? To that, the Supreme Court replies, “the material available on record clearly shows that PTIEF was found by the concerned investigative and judicial authorities of the Republic of Turkey to have direct link and nexus to FETO. This material is adequate for this Court to grant relief without second-guessing the position taken by the Government of Turkey [or] Pakistan” (para 23). This is an incredible admission; as the highest appeal court in the land, surely it is the Supreme Court’s Constitutional responsibility to do just that, that is to “second guess” the decisions of others that have come before it. What’s more, claiming to be in possession of material that shows that the Turkish courts have reached a certain decision, is not the same as claiming to be in possession of the actual evidence for those decisions and very different from appraising that evidence and showing how it justifies the present ruling.
Furthermore, many reputable international bodies have issued scathingly critical reports of the Government of Turkey and its judiciary since the failed coup. Thus, the “findings” of this government and its judiciary cannot be taken at face value. That said, if the view of foreign governments is of evidentiary value to the Supreme Court, can the court explain on what objective basis it chose to side with the view of forty unspecified Asian governments against the view of many more foreign governments and international political unions that have rejected Turkey’s call to proscribe the Gulen Movement, including but not limited to, the United States, the United Kingdom, Canada, Australia, Germany, France, Belgium, the Netherlands, the European Union, and the Council of Europe to name just a few. Moreover, on what basis does the Supreme Court believe that forty Asian governments have proscribed the Gülen Movement, to begin with? This is a total fabrication. Finally, the OIC has not issued a declaration that recognizes “FETO.” In any event, surely the declaration of the OIC does not trump the Constitutional responsibility of the Supreme Court to uphold fundamental rights as stated in Chapter 1 of the Constitution of Pakistan.
3. The Supreme Court did not appraise any evidence for itself.
That the Supreme Court has abdicated its role of appraising the evidence for itself is further demonstrated by the fact that it repeatedly qualified its own decisions in a manner that renders them legally meaningless. For example, in para 9, the Court says, “[i]n order to frustrate the aforesaid arrangement, it appears that the PTIEF had fraudulently got a Section 42”. In other words, the Court is not claiming that the PTIEF “fraudulently got a Section 42” but that “it appears” to have done so. Fraud, which requires dishonest intent and fraudulent action, and the appearance of fraud, which requires neither, are not the same. The first is a crime; the second is not. Thus, no person or legal entity can be punished on the basis of an appearance of crime.
Courts are there to adjudicate on what is and what is not a crime. Almost every case that reaches the court will appear to incriminate the suspect; it is the court’s responsibility to then rule on whether that appearance has demonstrable substance. Nonetheless, the Court ordered the Section 42 company defunct on the basis of the appearance of fraud. Similarly, in para 14, the Court says, “[i]t also appears that in an attempt to deflect attention and prevent recovery and transfer of funds, PTIEF […] has applied for change of name”. Once again, the appearance of an attempt to deflect and an attempt to deflect are not the same, but they are treated as such by the Supreme Court.
Para 19 is particularly telling and noteworthy in that respect. Here, the Court says, “[t]here are serious allegations that the schools set up by PTIEF were a façade [for] illegal activities,” including “money laundering” and “transfer of funds” to FETO. Having set out the allegations, one expects the Supreme Court to now adjudicate and to explain the evidentiary basis of that adjudication. Instead, the Supreme Court goes onto say, “on perusal of the record, the documents submitted before us and the arguments addressed by the learned counsel, we are in no manner of doubt that the Government of Pakistan has international obligations towards the Government of Turkey to declare FETO as a terrorist organization” (my emphasis). Once again, ‘being in no manner of doubt about Pakistan’s obligations to Turkey’ and ‘being in no manner of doubt that FETO and/or PTIEF are terrorist organizations’ are completely different conclusions. The former is a political while the latter is a legal decision. Pakistan’s presumed obligation to Turkey cannot determine the outcome of a case pertaining to criminal allegations and the infringement of fundamental human rights.
Why does the Supreme Court repeatedly qualify its decisions with such caveats that renders them meaningless or attempts to circumvent the responsibility to adjudicate on PTIEF’s culpability by conflating it with the Government of Pakistan’s international obligations towards Turkey? The answer to that question is straight forward: the Supreme Court knows that it is not in possession of evidence to rule that PTIEF is a terrorist organisation or that it has engaged in fraudulent activity. In the absence of that evidence, it cannot conclusively rule on the matter; hence the qualifications and obfuscations.
It is for the above three reasons that I believe this decision to be an affront to the rule of law and an abdication of the Supreme Court’s Constitutional responsibilities.
Finally, the Supreme Court says that the petitioner reminded the Court of Article 40 of the Constitution which pertains to the fostering of good will and friendly relations among Muslim countries. I would like end by reminding the Supreme Court of its responsibility to uphold the Constitution of Pakistan which includes protection of fundamental human rights such as the right to security of person (article 9), the right to fair trial (article 10), freedom of association (article 17) and protection of property rights (article 24). These fundamental rights cannot be traded off to uphold the supposed goodwill between governments.
PTIEF has been running twenty-eight schools in Pakistan to serve the people of Pakistan. Yet it has been denied the opportunity of a fair hearing by the Supreme Court. Thousands of Pakistani citizens, including staff, parents, students, and alumni will be impacted and deeply troubled by this decision.
I can only hope that this grave injustice is judicially reversed.