Posted on: July 30, 2017 Posted by: Muhammad Mubeen Comments: 0

Waking up on the morning of the 28th it felt as if the world had slowed down its pace, as if everyone was listening in to what was going to happen at 11:30. The media had stirred up a frenzy with panels guessing the verdict as if it were Jeopardy. However, it was almost certain that the decision served would be against the prime-minister. Nonetheless, it was amazing to see the anticipation. Somehow people expected, and prayed for, a plot twist. The plot twist did come, but not in the way that perhaps most people expected. I said before that we are witnessing democracy like we have never before. I am, however, unsure at this point that such is the case as of right now. History has been made. A prime-minister has been prosecuted, and his ouster ensured. One of the biggest political families in Pakistan now faces possible criminal charges in the references filed against them in NAB by the Supreme Court. The curse of the prime-minister seat still remains un-broken; perhaps most importantly for the first time in a long time, a dissolution of the cabinet has not (and hopefully won’t be) followed by the phrase “Meray aziz hum watanon.”

For me to provide my arguments, I must first clarify which camp I fall into. For me Mr. Nawaz Sharif who, by all accords, is an orthodox patriarch of the Sharif household, was at least partially aware of the multiple discrepancies that existed within the financial situation of his children. This means that he was at best liable for negligence, and at worse involved in aiding and abetting these alleged discrepancies. One needs to look no further than Justice Asif Saeed Khosa’s dissenting note on April 21st to find significant discrepancies in the PM’s statements and actions. I, however, lauded the court for its decision to probe the issue further and establishing a JIT, for I felt that a knee-jerk dismissal without proper fact-finding would have been irresponsible. However, I am somewhat disconcerted with the decision that has come through the gates of the hallowed institution that is the Supreme Court. To explain my reasoning, we must first define a fact base, all the stake holders involved, and what this judgement entails for them politically.

For the decision, the Supreme Court published a 25-page document that detailed the disqualification of the PM. The decision can be summed up in three major points (see clause 13 of the judgment).

  1. Nawaz Sharif was entitled to a salary from Capital FZE, and his salary was an un-received receivable.
  2. In such a case, the un-withdrawn salary would be classified as an asset.
  3. Since this undrawn 10000 Dirhams was an undeclared asset, the prime-minister is no longer Sadiq and Amin, and hence is unfit to be PM under sections 99(1)(f) of the ROPA and Article 62(1)(f) of the Constitution of the Islamic Republic of Pakistan.

The Judgement was passed as a unanimous verdict. There were further references sent to the National Accountability Bureau in which the findings of the JIT would be looked at, and a file would be compiled and presented to the Accountability Court in Rawalpindi/Islamabad. The historic Judgement meant that Mr. Nawaz Sharif  was removed from his seat within the hour- it also meant that Imran Khan was somewhat politically vindicated. It meant that the streets would be littered with both elated and hysterical screams and screeches. Most importantly it meant that the PML-N now needed to rethink its future (which it was already in the process of doing). We now know that Mr. Shahbaz Sharif is pegged to be the next PM, but all of this is happening at a cost that has not really set into the hearts of those who are lauding this judgment as great.

First, there is a political cost. Neither party would have gone quietly into the sunset with this decision. It was more than likely that if the decision came in favor of Nawaz, PTI would have organized its men for a major show of street power. Thus, a political war is expected between these parties, one that could turn ugly. The other cost, however, is much more sinister – the weakening of democracy. At this point, I will state that I have not suddenly become pro-Nawaz. What I have, however, always been is pro-democracy. I do not agree with the fact that the removal of the prime minister weakens democracy especially in a democracy like ours. Here, the movie of democracy has always had two major characters, with Imran as the lens flare for effect. So there is a requirement of someone who keeps these characters guessing, making sure that none of them take advantage of their respective roles. That role is  the judiciary’s. But at the same time, the role of the judiciary must also have some limitations.

Basically, what happened in this decision was simple. The courts felt that out of all the allegations and “evidence” that was presented to the bench – the flats in London, the millions of rupees, the factories in Dubai – what constituted the removal of a prime-minister was the fact that he did not declare money that he did not receive. Now at this point, I would like to address a concern. The concern is that such a decision has not come in a vacuum and that the JIT report shows considerable inadequacies against the Sharif house-hold, and that remains true. But the Supreme Court is not a trial court and therefore will not indict the Sharif family, which is apparent in the decision that was published. Thus, the court was left with the articles 62 and 63. Never mind that the law is archaic and needs to change; the fact that this decision was made could mean that it could start a chain reaction which could lead to the disqualification of almost all our representatives. The fact is that this sets a precedent which could be used to disqualify elected officials without due process. And the fact that this decision could leave the door open for unwarranted abuse of the law (Read: Another One Bites the dust, Dawn, Barrister Salahuddin Ahmed) means that the decision can have far reaching and dangerous effects; effects that we aren’t ready to quantify as yet. Furthermore, when Asif Saeed referenced to the Godfather in his dissenting note, he added the line:

“The secret of a great success for which you are at a loss to account, is a crime that has never been found out, because it was properly executed.”

But are we ready to catch the perfect crime, are we willing to take such a step when there is little or no difference between the perfect crime and no crime at all? Would we want to take the risk of convicting innocent people citing this argument when innocent until PROVEN guilty is the corner stone of our justice system?

Do I believe Nawaz Sharif was guilty? YES. Should the court ‘believe’ so? I doubt it. Justice is, by its definition, blind and its results, no matter how unsensational or uninteresting, are to be clear whereas such a decision leaves question marks. The fact that no due process was enacted as mentioned by Asma Jehangir in an interview with Tallat Hussain leads me to believe that the court may have rushed this decision.

The judiciary of Pakistan, especially since 2007, has always had an ethos of incorruptibility, of honor. and integrity, and therefore rarely have people stood up and questioned their intentions. If the proceedings prior to the JIT report meant that Nawaz Sharif wasn’t to be removed from his position and that the JIT report itself isn’t party to this decision, it means that this – the money that wasn’t received –  was enough to change the mind of 3 Justices. An equally improbable but possible theory is that “Madam Justice” was so blind that it failed to see a third party (that shall not be named) or, even more dangerously, its own politics alter the scale. If the third party was in fact involved, as many writers believe, then this is simply the norm. The PSP, the decline of MQM, the hanging of Bhutto are all examples of its alleged political forays; this might be just another example. Here the consensus remains that the third party’s endeavors into politics are not warranted (even if they reap short term results), but there is the possibility of the political stance of the court. Could this mean that another institution, whose members are not elected by the people, one that appears to be fulfilling its duty when everyone else is failing, one that aims to protect the land, may now be gunning for power? While one part of me says that my mind is making connections where there are none, another part reminds me of all the times institutions did exactly such a thing. My hope at the end of all of this is simple: I hope that democracy prevails, justice is served and we come out of this ordeal a stronger and more democratic nation and that the trichotomy of state does not become the dichotomy of power.

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