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Feast of Obscurity

by Ejaz Haider

Aamir Qureshi—AFP

The Supreme Court fires its silver bullet

The Supreme Court of Pakistan has axed Nawaz Sharif, now the former Prime Minister of Pakistan because he was deemed “not honest in terms of Section 99(1)(f) of the [Representation of People Act (ROPA)] and Article 62(1)(f) of the Constitution of the Islamic Republic of Pakistan.”

Thus fell the hammer on a case that began with the leak of the Panama Papers.

The rest, the original prayer before the court—the London flats, corruption, money laundering, the fake documents (Calibri font), the controversial Qatari letter, etc.—while considered ‘prima facie triable’ by the court, and having played no small a role in building perceptions, nonetheless, could not be worked into getting rid of Sharif.

In hindsight, all the brouhaha appears more like artillery salvos to soften the target. The sniper’s kill came from somewhere else.

As a friend mentioned, ROPA would have been enough. But that was not to be. Article 62 was employed to ensure the coup de grace: lifelong disqualification. But here’s the thing: Justice Asif Saeed Khosa, one of the two judges who originally disqualified Sharif, seemed to consider the provision “a nightmare for lawyers and a feast of obscurity.” Somewhat similar reservations were voiced by a former judge of the Supreme Court, Jawwad S. Khawaja, in another case. Justice Khosa also gave an obiter dictum during the proceedings in January this year (remarks he later withdrew) wherein he said that “We have to lay down the parameters. If the situation continues then no would be able to escape from Articles 62 and 63,” adding on a lighter note that perhaps Siraj-ul-Haq (of the Jamaat-e-Islami) will be the only man standing in that case.

Yet, the kill is notched by Article 62, a precedent has been set. There’s irony here, too. In the earlier judgment on the Panama Papers, which began with a reference to Mario Puzo’s The Godfather, Justice Khosa’s minority judgment had another reference: Shakespeare’s The Merchant of Venice. The judge quoted Bassanio (Act 4; Scene I) pleading with the judge in the play (Portia in disguise):

“…And I beseech you,

Wrest once the law to your authority:

To do a great right, do a little wrong,

And curb this cruel devil of his will.”

Put simply, Bassanio begs the judge to use his authority to bend the law in the service of doing a great right by doing a little wrong.

To this, Portia, disguised as the judge, replies:

It must not be; there is no power in Venice

Can alter a decree established:

’Twill be recorded for a precedent,

And many an error by the same example

Will rush into the state: it cannot be.”

In other words, the judge cannot do that. No power in Venice can change an established decree because doing so will become a bad legal precedent from which will flow many bad legal decisions. That cannot happen.

Justice Khosa then goes on to say: “…The punch lines in the abovementioned excerpt appear to be ‘Wrest once the law to your authority: To do a great right, do a little wrong.’ Fortunately for me, there is no wresting the law to my authority and no little wrong is to be done by me to do a great right…” Put another way, the honorable judge is clearly cognizant of the mischief that can issue forth from the loins of such an exception.

Yet, he is also convinced that like Lord Denning’s man on the Clapham omnibus (I am not sure if the phrase was coined by Denning), “A pedestrian in Pakistan Chowk, Dera Ghazi Khan … may not have any difficulty in reaching [the] conclusion” that Sharif has not been truthful about how he acquired the London properties.

The question about whether the highest court should be in line with the man on the Clapham omnibus, a reference to a reasonable common citizen, is an old one and the pros and cons on both sides of the argument have sired much literature. But that aside, in the same judgment, Justice Azmat Saeed opined that “We cannot resort to exceptionalism by making a departure from the settled law and inventing a new set of rules merely because Respondent No.1 holds the Office of the Prime Minister. The last time in our legal history, when such a course of action was followed, it had tragic consequences.”

So, what happened? Why the departure?

One can offer some explanations, outside of the conspiracy theories, but none of those explanations is a settled theory. What’s plausible is, going by what we saw in the first phase of the Panama hearings, the Joint Investigation Team (JIT) investigations and finally the second phase of hearings post-JIT report, that it would have been difficult to pin Sharif down on the basis of what the JIT had or what the court could gather. At most that was ‘prima facie triable.’ The convenient way out was to use Article 62 and the Capital FZE salary, stretched technically, could help with that.

I do not know, firsthand, if the Sharifs are corrupt. I dare say 95 percent of those who think they are do not know this firsthand. Most of us believe, from what we have heard or read through other sources that they must be. We also believe that they were evasive and why must one evade and parry questions if one had nothing to hide.

I also believe, as do most, that accountability should be built into the system through mechanisms that can hold the feet of public office holders to the fire. I also do not think, as I wrote in this space earlier, that accountability should in and of itself dent the democratic system (of course, one can argue how nonpolitical/unelected forces have exploited situations of political instability).

Even so, it is equally important to ensure that the judicialization of politics does not become a permanent fixture in a system because that is what gives rise to judicial activism, which might seem to some to be attractive but has many pitfalls in the longer run.

I also do not know if any other court in different circumstances would have treated the salary which was never received as amounting to salary accrued and receivable and therefore an asset that was not declared. A friend, who is a chartered accountant and not particularly enamored of the ruling party, told me that from a financial point of view this is not a minor technicality: “Going into the specifics would start a discussion on three different and detailed accounting standards. From where I stand as a chartered munshi the legality is ok.”

He might be right. I can’t judge. But here’s another viewpoint from an analysis in Dawn by Barrister Salahuddin Ahmed:

“There are two main systems of accounting. Individuals generally adopt the cash-basis system where you only record monies you have actually received as your income and monies you have actually paid as your expenses. Companies prefer the accrual basis of accounting where you record all monies receivable by you (whether you have actually received them or not) as your income and all monies payable by you (whether you have actually paid them or not) as your expenses.

“In other words, you record your income at the time you become entitled to it instead of the day you actually receive it. Both systems of accounting are perfectly acceptable under Pakistani law.”

Once again, I don’t know and can’t judge. But from where I stand, ceteris paribus, it is fairly clear to me that in the end the Supreme Court used a device which is controversial (Article 62) and which is, to quote pre-Panama Justice Khosa, “a nightmare for the lawyers and a feast of obscurity.” Moreover, that I certainly could not hold any public office and I suspect that would be the case with most.

The observation about the technicality used by the Court is that regardless of whether Sharif is innocent or guilty, though if he could be found guilty on other bases, I suspect we wouldn’t have seen the Court finally slip the silver bullet into the chamber and snipe him with that.

The rest, we know, has to be tried. On that, the anomaly is even greater: if the Court has deemed Sharif unfit (not Sadiq and Ameen) 5-0, how will he be treated ‘fairly’ by an organization and/or court much lower on the ladder? This is almost like the Army chief dismissing an officer from service and then ordering a brigade HQ to proceed in that case fairly.

Of course, none of this is meant to absolve the Sharifs of wrongdoing, if any were committed. It is a commentary on the many contradictions and anomalies that have crept into this system to a point where it has become a Daedalian maze from where there’s no escape without waxen wings.

As for whether getting rid of Sharif will clean the Augean stables, the answer is no, despite the misplaced enthusiasm of those who have consumed gulab jamans. But that’s another story.

Haider is editor of national-security affairs at Capital TV. He was a Ford Scholar at the Program in Arms Control, Disarmament and International Security at the University of Illinois at Urbana-Champaign, and a visiting fellow at the Brookings Institution, Washington, D.C. He tweets @ejazhaider 

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Nasiroski July 30, 2017 - 1:35 am

Fair take on the situation, what does not qualify common sense definitely gives birth to conspiracy theories and lo and behold a couple of years later the real story comes out.

Someone July 30, 2017 - 8:22 am

Very well written sir.

Waseyullah July 30, 2017 - 9:28 pm

Can we have dictionary for difficult words.

ALI AHMED JAN August 1, 2017 - 8:22 pm

Should we continue with fraudulent and looters of country. these people do corrutions with leaving no proofs. everything is written on wall even if it is not proved.


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