By Najam Sethi
04 Aug 2017
If perceptions are more important than reality in the popular imagination, then the perception that Nawaz Sharif is corrupt is dogged by the perception that he has been targeted for punishment. The perception that the Sharifs did not come clean before the JIT is tarred by the perception that the JIT was rigged against them. The perception that there was no escape from a proper accountability trial in the proper criminal forum as ordered, is blotted by Mr Sharif’s disqualification for life on a questionable application of Article 62(1)(f) of the Constitution based on contrary definitions of law and mistaken interpretations of statements made by members of the Sharif family. Consider.
The judges say that Mr Sharif is not “Sadiq” and “Ameen” because he made a false statement before the Election Commission when he didn’t declare his unreceived salary or income from a UAE company as an “asset”. The problem is that, under Pakistani law, as every tax practitioner will swear, individuals (unlike private and public limited companies or partnerships) are not required to list “receivable income” (other than contracted rent) as income subject to income tax in their personal tax returns. Nor is such unreceived income treated as an asset. But the judges made the unprecedented leap from “income” to “asset” on the basis of a definition in a dictionary rather than the established and practiced tax law in the country. Indeed, the perception of a populist bias has gained currency because there is no mandated or specific constitutional requirement to disqualify him for life.
It has also been pointed out that the statements of various members of the Sharif family, notably that of Mr Sharif in parliament, are open to interpretations and conclusions quite different from those made by the JIT and judges. This suggests that these do not necessarily contradict one another or any of the documents or subsequent arguments and statements made by them.
The appointment of a judge of the three-member tribunal to oversee the trial in a NAB court is unprecedented. It also raises serious concern about the ability and willingness of a judge of a lower court to exercise independence of judgement when he is constantly looking over his shoulder at the senior SC judge supervising the process.
The SC decision to set a time frame for the whole legal process in this case involving several accused to end in six months is also unprecedented. Unlike the JIT investigating the charges, which couldn’t complete the job satisfactorily in 60 days and left Vol 10 of its report hanging in mid-air, this is a trail court which is obliged to give sufficient time for all to collect and present evidence and for the evidence to be challenged and debated. This would suggest a decision before the general elections next year that would tilt the scales one way or another, an act that could be classified as controversially political rather than legal in nature and consequence.
It is significant that, in the process of setting new precedents of far reaching consequences for state and society, some of the honourable judges have overturned their own earlier legal opinions and judgements, notably in reference to Articles 62 and 63. This has strengthened the unfortunate perception that populism is influencing the judgments of the apex court.
Understandably, therefore, the debate is shifting to more substantial issues related to the role and powers of the SC. Why are the judges, like the military, unaccountable to parliament? Why is the SC increasingly offering its platform as a court of first appeal when there is no significant and due process of appeal against its judgments in such cases? Are these manifestations of a creeping “judicial coup” against the letter and spirit of the Constitution in which both due process of law and accountability of all, subject to checks and balances are deeply enshrined? Are the judges to a man all “Sadiq” and “Ameen” themselves so that they can fairly determine who is “Sadiq” and “Ameen” among the 240 million populace of Pakistan?
Given the logic of the situation and legal reservations, Imran Khan and Jehangir Tareen too cannot escape the same fate. There are similar holes in accounts of their money trails. Indeed, if Asif Zardari is investigated, he too will have a hard time surviving the wrath of this sort of law. We may further agree that if petitions are lodged against parliamentarians of all sides by all sides demanding investigations of money trails and assets and written-off loans to justify lifestyles and incomes, there won’t be a parliament to talk of in the country and the stage will be set for dictatorial unaccountable disorder.
There is still time to stop this slide into anarchy. Eminent neutral opinion holds that a full SC should consider an appeal against the judgement to disqualify Nawaz Sharif on the basis of powerful qualifications and considerations presented here. The righteous outrage of the five judges should be tempered with the collective legal wisdom of all the 17 judges of the Supreme Court.