The judgement is in. The jury unanimous. But that doesn’t mean that the Supreme Court’s decision to tell Nawaz to go in no uncertain terms comes not without its fair share of surprises. For amidst all the cries lauding the ruling as a triumph for Pakistani democracy – we must remind ourselves that nothing is ever as clear cut as it seems. Especially in this hard country.
What do we mean by this?
A good starting place would be revisiting Imran Khan’s petition against the 10 respondents. He hoped and prayed that Nawaz Sharif, Ishaq Dar and Capt (rtd) Safdar lose their seats in the National Assembly and the Senate. Also on Kaptaan’ wish list was that the looted money, along with properties purchased in the British Virgin Islands as well additional offshore companies in other tax havens be recovered. Moreover, he demanded the NAB chairman be removed from the probe given that he was reportedly on the now ousted Prime Minister’s “payroll”. And neither last nor least, the PTI chief called for Nawaz and his family members to be put on the Exit Control List.
Interestingly, the apex court verdict offers no judgement on any of the above allegations when it comes to Nawaz and his family, which also include tax evasion and non-declaration of assets. On all of these points, the court has directed the NAB to prepare references to be filed in the Accountability trial court to ascertain how the Sharifs appeared to be living beyond their ‘known’ means.
And here we have it. The SC has disqualified Nawaz from the office of the Prime Minister based on the findings of the JIT on the grounds that he did not declare his non-drawn salary from a company owned by his son. And this is where some say that the JIT enters shaky ground. The latter had initially asserted that Nawaz was drawing a salary of AUD 100,00 per month in his capacity of the Chairman of the UAE-based Capital FZE Company. For his part, the now ousted PM submitted that he had never drawn a past salary, stressing that neither did he have any future plans to do so. Thus had he written a letter back in January 2013 directing his son towards this end. Meaning that this was done before he filed his nomination papers and before the company itself was dissolved. This is why the company remained an undeclared asset.
The court, however, stood steadfast in its disregarding of this letter. Rather, it appeared entirely focused upon seeking a technical loophole in its interpretation of ‘assets’. All the better to disqualify a sitting Prime Minister to placate the present popular sentiment, some might say. Yet in doing so, the court failed to take into account the intentions of the defendant.
This is not just about one particular case.
The courts have set a dangerous precedent.
Meaning that for the first time in the country’s history the superior court has invoked the infamous Article 62, which relies upon the undefined notion of moral repute. In other words, this judgement has lowered considerably the threshold when it comes to disqualifying a sitting PM. And this is not in any way shape or form good for Pakistan’s future democratic health, leaving, as it does, the door open to military dictators ready to chop off civilian political heads. Which is why the judiciary had always been extremely cautious about its use. In addition, to further push its case, the SC negatively invoked Section 99(f) of the Representation of People Act 1976, which articulates safeguards against disqualification hinging upon an individual being “sagacious, righteous and non-profligate and honest and ameen”. That it did so without any additional qualifiers pertaining to, for example, definitions of the above itself represents a travesty of justice and only seeks to mock notions of fair and transparent due process.
Yet above and beyond all this – the subjectivity of which the above interpretations rely upon delivers a severe blow to kick-starting Pakistan’s accountability process. Meaning that it inadvertently paves the way for those convicted to cry foul of a flawed judicial process and thus play the victim card. Instead of a defendant on trial for criminal acts. Thus the very real fear is that in democratic Pakistan today – the judiciary itself will be the biggest loser in this entire process.
And on that, the jury is very much in.