Aug 01, 2017 Dr. Niaz Murtaza Comments Off on A harsh verdict
A harsh verdict
Dr. Niaz Murtaza
Elected rulers are not above the law if they commit crimes. Democracy is bolstered if they get barred via due process. The SC launched an unprecedented inquiry via its 184(3) discretionary powers into Sharif finances based only on suspicion. Since NAB rarely investigates its bosses, the SC step was right. But its novelty and focus on one clan made it critical that the inquiry follow clear law and precedence with no further SC discretion to avoid bias charges.
I had many concerns pre-verdict, two of which would have doomed the verdict for me. The first was Sharif being barred due to his adult children’s crimes. A FATA-type joint culpability law shouldn’t spread elsewhere beyond some NAB cases. The second was the use of a vague and moralistic view of 62 rather than a legal one as always before. The verdict avoided both concerns.
But other issues plague it. Even if they did not change the verdict, they have tainted the process. This is the first time an MP has been barred without trial and that too by the SC directly, which means no appeal. Constitutional clause 10 mandates fair trials for people facing criminal charges. But Sharif was denied one. The long hearings in SC were an inquiry and not a trial. Some say the SC can give verdicts without trial if guilt is self-evident. I see clause 10 but not these SC powers given anywhere. So the SC, the constitution’s protector, has evidently given itself the power to override it unilaterally. That makes it the second institution in the twin cities to do so.
Even when guilt is self-evident, why not send the case for a quick trial to meet constitutional edicts, document things and decide a fair punishment? Nor is guilt self-evident here. The verdict unseats Sharif for not declaring a salary he never took, terming it a receivable asset. In cash accounting, which individuals and small firms use, assets only include those in hand. Accrual accounting, which large firms use, also includes receivables. The latter is more accurate but both are legal. As an individual using cash accounting, Sharif was right in not disclosing receivables. But the SC says he should have used the strict accrual accounting view of assets even if individuals don’t use it and the ECP gives no guidance. The SC is right if one takes the strictest view but this strict view has never been used before to bar MPs. Did the bench take this strict view as it was upset at the more serious charges the JIT levelled (which the SC had to send to NAB legally) and was looking for anything small to bar Sharif? To avoid such charges it was best to send the case for a quick trial to other judges. They may have barred Sharif too, but not for life, which seems harsh for this minor and iffy issue. MNA Iftikhar Cheema hid not iffy receivables but physical assets and was barred in 2016 but not for life. Sharif should ask the SC for a review given the lack of a fair trial and the legality of cash accounting. He may even try a long-shot plea to the CJ under 184 (3) about his basic rights since the SC seems to have wide powers there to override other laws. But any reprieve may be brief since he may get convicted in NAB cases soon.
So, I find the process flawed. The verdict is not outright wrong but unprecedented, borderline and given hastily by the wrong court. But borderline verdicts can expand the borders of accountability. Should we celebrate SC’s new strict approach? We could if it is applied to others too, especially Zardari, Altaf and Tareen, and the SC ensures NAB/FIA autonomy. But if the SC dithers after Sharif’s case, it would reflect selective accountability and victimization. But there is a larger issue here. By delinking disqualification from serious crimes and linking it to a minor issue, the SC has created issues for relatively honest persons like Imran who may have erred on a minor issue too. But it has allowed corrupt persons like Sharif to claim bias for being barred for a minor act. It is better to quash this strict verdict and precedent in review.
The logic for SC’s unusual inquiry against Sharif was executive agencies’ fear of trying the powerful. But this logic applies well to another case which executive agencies and even PMs fear pursuing: Musharraf’s case. Given civ-mil imbalances, the SC must itself fast-track it. His guilt is self-evident. So why not convict him sans trial? As a true believer in the rule of law, I oppose even that. But his trial should end soon. Otherwise, the SC seems free from the grip of only one of the twin cities. It’s shameful that generals have blocked his trial. It shows their loyalties lie mainly with their institution, not Pakistan.
Sharif should be punished for his crimes. His NAB cases present an opportunity to do so. But iffy verdicts like this one only backfire. However, for many educated people, all this is irrelevant. A lack of regard for the rule of law plagues not only our elites but vast sections of our educated middle-class too which self-righteously support coups, military courts and iffy verdicts.
The writer is a Senior Fellow with UC Berkeley and heads INSPIRING Pakistan, a progressive policy unit. firstname.lastname@example.org www.inspiring.pk.
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