I personally happen to be of the opinion that Articles 62 and 63 have no place in our constitution. They should be repealed as soon as possible and whichever parliament does so would be doing history and jurisprudence a favor, At the same time, though, these Articles do exist and are a part of the "letter of the constitution", quite literally.
For the majority of the day, my facebook newsfeed has been inundated with joy and disgust, abandon and hesitance. Most people seem relieved to see the back of Ameer-ul-Momieen, due process or no due process. Some are disappointed in the judiciary's willingness to participate in this "judicial coup" and its attempts to further the agenda of an anti-democratic establishment. I have nothing but respect for both these positions, given that they are reasonable and not entirely outlandish. Anyone with a working brain can see that politics in this country goes beyond the politicians and the institutions they are most closely associated to. Our history has taught us many a lesson, including the need to be wary of an apex court wielding such power. The specter of Justice Munir still haunts us and perhaps, should continue to.
Having read all 25 pages of the Judgement authored by Justice Ejaz Afzal Khan, I do want to talk about a few salient issues.
a) It is not the Supreme Court's job to engage in political debate about the historical baggage that Article 62 (and even 63) represents. If a law is on the books, I see no reason for why it shouldn't be invoked. From a purely political perspective, Mian Nawaz Sharif fought tooth and nail to ensure that these articles wouldn't be removed from the body of the constitution, during the 18th amendment days. Seeing him fall on his own sword gives me a perverse pleasure that is very difficult to deny.
b) No, the Supreme Court could not throw him out for the offence of corruption or for the appropriation of public money or for having wealth disproportionately larger than what his means allowed him to possess. The Supreme Court, according to my understanding, is not a trial court, and even its original jurisdiction 184(3) does not make it a trial court. Cognizant of the fact that the voluminous record available points to nearly certain guilt, the Supreme Court was wise in providing the direction it did. I wish to quote Justice Ijaz-ul-Ahsan at this point, when he says:
"....such conviction can only be recorded by an Accountability Court under the NAO, after a proper trial, recording evidence and granting due process rights guaranteed by the Constitution to the accused. To transplant the powers of the Accountability Court and to attach such powers to the jurisdiction of this Court under Article 184(3) of the Constitution has neither been prayed for by the petitioners nor can it be, in our opinion, done without stretching the letter of the law and the scheme of the Constitution"
I find this line of reasoning quite persuasive. For those who say, "HEY! NAWAZ SHARIF IS DEFINITELY GUILTY BUT HE HAS BEEN SENT HOME FOR THE WRONG REASONS. THIS SETS A TERRIBLE PRECEDENT", I am unsure what kind of precedent an overly broad interpretation of 184(3) would set.
By no means am I suggesting that the Honourable Justices Gulzar and Khosa were malicious or misguided in disqualifying MNS. It is not my position to make claims like this against such giants of the legal profession. I am merely suggesting that the restraint exercised by the majority in that bench had strong legal merit. Even in the aftermath of that restraint, it is commendable that Justices Khan, Ahsan and Saeed did not want to risk playing with the integrity of the constitution.
c) Some people seem to suggest that Nawaz Sharif's failure to disclose his assets correctly while filing his nomination papers, accompanied by a sworn affidavit, was a mistake. Ergo, the punishment being prescribed may be disproportionate. Even if one were to assume that the representation of his non-withdrawn salary as a non-asset may have been a simple accounting mistake, the Court's decision to treat it as a violation of the requirements of being Sadiq and Ameen is vindicated by MNS's sworn affidavit. The purpose of such an affidavit is to ensure that the filings have integrity, and such basic mistakes have been accounted for. Moreover, who doesn't know that Nawaz Sharif lied and did so copiously?
The point I am making is simple. The Court understood that it was looking at a fairly unprecedented case in terms of its jurisprudence, as well as political ramifications that could arise out of the court proceedings. Had this been the handiwork of the establishment, the Court would have had very little reason to uphold the stringent requirements of Articles 10 and 25 of the Constitution. The Court could have convicted MNS and co., without giving them the opportunity to defend themselves in a full fledged trial with the recording and cross-examination of evidence and witnesses. On the contrary, it merely "disqualified" him from office.
The Left in this country suffers from a number of issues: myopia and a faulty short term memory being two of them. I understand the need to go after the establishment hammer and tongs, but at the same time, let's take a step back and critically examine the facts before us. Now more than ever, the Supreme Court needs our faith and belief.
Yes, no Prime Minister has ever completed their term. Yes, there are forces at play that show democracy a pittance of consideration and trample all over it when they can. At the end of it though, let's not let a liar get away with misrepresenting the trust of public office. Let's not let him hold millions of votes in disdain. Let's not let him become just another Prime Minister, just another incomplete term. Mian Nawaz Sharif may not be guilty of everything levied against him, but the least we can do is hold him accountable. Let's not fail at that.
Pakistan Zindabad.
Credits HAFIZ USMAN TANVEER MALIK
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