The judgment of the Supreme Court was both expected and unexpected. The unexpected feature of the judgment was indeed the disqualification of the Prime Minister under Article 62(f) on a small intentional or inadvertent mistake of not declaring the receivable salary (10,000 Dirham) at the time of filing the nomination form with the Election Commission. Under the statutory tax laws, if a person is maintaining the cash accounting system then receivable cannot be considered as asset. But Supreme Court is all powerful to give these laws new interpretations and one cannot question the wisdom of the learned judges.
Sharif and his family should have been tried for the Panama Leaks money laundering case by the lower trial court so that they had a fair chance of going to the superior courts to appeal if the verdict was against them. That is what is called the right of fair trial. Prima facie it seems that the money sent by Sharif’s father to buy a steel mill in Dubai was not through a proper banking channel which is why they could not provide the first link of the chain. It is also possible that the money was transferred in the 80s through the Foreign Exchange Bearer Certificates (FEBCs) the instrument introduced by Dr Mahbubul Huq to ease the strict foreign exchange control laws that prevailed in the 80s.
It is not only the issue of jurisprudence in such cases. Interpretations have been subjective whether the issue is legal or attached to the religious interpretation of the Holy Quran or the tradition. Just to refresh your memory take a snapshot of the Islamic jurisprudence evolution. We have five major ‘Fiqahs’ that rule the Islamic jurisprudence and are accepted by the Muslims of the world.
One Quran and a number of traditions (Sharia) and Ahadith, have been interpreted by Imam Abu Hanifah (80-150 AH), Imam Malik bin Aas (94-179 AH), Imam Ash Shafi (150-204 AH), Imam Ahmad ibn Hanbal (164-204 AH) and Imam Jafar Sadiq (80-148 AH). Although some of them had teacher-pupil relations, they disagreed with each other. (The schism created by these different interpretations has divided the Muslims into a number of sects, who at times settle their ideological scores violently. But to be fair with Islam this is what happened to all religions and even scientific, social and political ideologies with the passage of time). The rulers took full advantage of this disagreement.
For instance in the case of the firebrand Sufi Mansur al-Hallaj “(t)he two judges called upon to consider the case had both found the opinion itself to be heretical, but had disagreed over the legal consequences that flowed from Al-Hallaj’s ownership of the document. One of them, a Hanafite, had ruled that the mystic could escape punishment by disowning any belief in the heresy. But the second, a Malikite had found him to be incapable of sincere repentance (a la’ Rushdie apology) and liable to execution.” (1) The Caliph al-Muqtadir’s Wazir used the Malikite interpretation thus the man who became the symbol of speaking truth in our religious folk lore was done with.
Similar problem exists with our Constitution which gives too much space to the interpreters of this written document which is almost 45 years old. But in the case of religious tradition the first interpretation came almost 100 years after the oral scriptural and traditional history. This is the time when the constitution exists as a fresh and dynamic document as it would be seen when amendments of fundamental natures were made. And yet even the most clearly written clauses are being called to interpretation by the courts, but so far the cunning and clever government has not fallen in that trap.
General Zia-ul-Haq, who considered himself a kind of religious guardian of the country, added sombe disputable clauses to Articles 62 and 63 of the 1973 Constitution of Pakistan
In modern times we have seen how clergy out-witted all sections of the society which took part in the revolution of democratic Iran in 1979. The Iranian Constitution provides for an institution of the “Religious Guardianship (Velayat Faqiye).” This “Guardianship of the Just Man of Religious Law (Fiqiyeh-e-Adl) is on “the basis of the continuous Guardianship and leadership (Imamate) …under all conditions…” According to my limited knowledge, there is no precedent of such an institution in the Muslim states’ history.
What reminds me of this institution is the recent decision of the Supreme Court disqualifying the Prime Minister. It has referred to some clauses of the Constitution which has raised alarm-bells. General Ziaul Haq, who considered himself a kind of religious guardian of the country, added some disputable clauses to Articles 62 and 63 of the 1973 Constitution of Pakistan.
Until the judgment of the honourable Supreme Court, these clauses of the Constitution had remained dormant. Nobody had sought disqualification of any member of the parliament, the president and the prime minister by invoking these clauses.
The PML-N and PPP should now be regretting that they did not strike down Article 62 and 63 of the Constitution when they were working on the 18th Amendment. I had raised this issue with some of the members of Parliament at that time but they said that religious parties are not willing to budge on this issue.
The liberal parties should get together with PML-N in the parliament to flush out Articles 62 and 63 from the Constitution. They should remember that the process which had started with PML-N’s Prime Minister will not stop and will disqualify their leadership also. It’s time to reflect on this seriously instead of celebrating Nawaz Sharif’s ouster.
The writer can be reached at [email protected]
Published in Daily Times, August 3nd 2017.