Aug 15, 2017 Dr. Niaz Murtaza Comments Off on 58 and 62
Sharif’s removal has led some to term Article 62 as a new 58(2)b for the deep state to remove elected regimes. The SC decision was truly harsh. A PM with a two-thirds majority was barred for life sans trial or appeal for not showing a tiny receivable, an act legal under cash accounting which individuals use universally and legally. Even jet-black terrorists get a trail of sorts and an appeal, but not a PM. Sharif is likely guilty of sleaze and should be punished but through due process for serious charges via NAB cases. I don’t oppose the decision for Sharif’s sake. It just hastened his removal. But it undermines SC credibility and may hurt future PMs only committing minor oversights.
I have seen no proof yet the deep state plotted this decision. Still, this easy removal of a strong PM may alert its fertile minds to this tool’s future utility in fixing prickly PMs. So, this gap must be filled proactively even if Articles 58 and 62 differ in potency. Under Article 58, the deep state, with the President and SC’s aid, could dubiously dismiss Parliament, install hostile interim setups and rig polls to fully fix errant PMs. Sharif’s recent removal was dubious. But it left his governments and informal hold intact. His removal may entail some loss of control and electoral edge, especially if he is convicted in NAB cases and jailed for long. But conviction in NAB requires stronger proof and is appealable.
While conviction is still likely, jail time is not, given the President’s pardoning powers. The lifetime bar and NAB conviction may even make him impervious to further legal worries and hence bolder, for good or for worse. Nor can agencies manipulate polls like before or easily find pliant judges in today’s free judiciary. While the judiciary’s autonomy from Islamabad is clear, that from Pindi can become clearer if it fast-tracks Musharraf’s case and annuls military courts. These issues reflect the challenges the deep state now faces in constitutionally harming elected regimes, which have thus become less prone to intrigue. Still, a strong PM being barred so easily for life without trail and appeal for a triviality is bad for stability. Politicians should thus plug this gap.
But the main issue is not the vague sub-clauses of 62/63 even though most blame them. They just allow frivolous litigation for minor, non-criminal issues and thus must still be amended. However, always viewing them legally, courts have never barred MPs on vague moralistic charges but only for legal crimes, like forgery, under these sub-clauses. Even Sharif was removed primarily not via 62/63 but Representation of People’s Act (ROPA) laws on disclosing assets. Since the judges (harshly) found him guilty of breaking this law, they also applied Article 62(1)f for dishonesty. ROPA laws only de-seated him. Article 62(1)f barred him forever. But in MNA Iftikhar Cheema’s 2016 disqualification, the SC only applied ROPA laws even though he hid major physical assets and not tiny receivables, and let him run in the by-elections. This lacuna must end and ROPA rules must be amended for minor oversights.
But the main issue is Article 184(3). Under it the SC has disqualified MPs for “self-evident guilt” without trial even though Article 10(A) mandates fair trials for people facing criminal charges. An inquiry against Sharif was needed since executive agencies did not act against him. But this logic does not apply to Imran. So, why is the SC hearing a case against him under Article 184? Parliament must circumscribe 184(3) to end the removal of MPs sans trial and appeal. But to keep balance, it must enhance politicians’ accountability so that the corrupt don’t escape.
Liberals usually sweat more about civ-mil imbalance than sleaze, unlike most middle-class people who are incensed deeply by it and even see civ-mil imbalance as a way to end it. But the liberal view is correct. Army hold has made us a paranoid security state and impeded progress more than sleaze. India and China have grown fast despite high sleaze. But no state has grown as fast under the hold of an army pursuing a dodgy regional agenda. Civ-mil imbalance emerges from one institution’s ethos and is thus more easily fixable. Sleaze emerges from the very structures of our society and requires patient long-term antidotes. Escaping from it is like escaping from our own shadow. Disliking it is like disliking our own mirror image. The view that civ-mil imbalances exist due to civilian misrule is wrong too since most misruled states don’t have them. Our sleaze and civilian misrule levels match regional norms, but not our civ-mil imbalance.
A highly corrupt politician barred but for a triviality sans an army hand still working behind scenes to end the imbalance in fury will be the perfect bizarre plot for our very bizarre politics. I want Sharif convicted in NAB cases. But I also want him as our strongest and most inclined politician to still work to end the imbalance. Go, Nawaz, go! I support both meanings of the phrase.
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