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Problematic articles

Updated August 15, 2017


NAWAZ 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 court’s decision was harsh. A prime minister 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 trial of sorts and an appeal.

Sharif is likely guilty of sleaze and should be punished but through due process. I don’t oppose the decision for Sharif’s sake. It just hastened his removal. But it may undermine the court’s credibility and hurt future prime ministers committing only minor oversights.

I have no proof yet the deep state plotted this decision. Still, this easy removal of a strong prime minister may alert its fertile mind to this tool’s utility. 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 Supreme Court’s aid, could dubiously dismiss parliament; it could instal hostile interim set-ups and rig polls to fix errant prime ministers. 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. 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 bad. Nor can agencies manipulate polls like before or easily find pliant judges. While judicial autonomy from Islamabad is clear, that from Pindi can become clearer if Musharraf’s case is fast-tracked and military courts annulled. These issues reflect the challenges the deep state faces in constitutionally harming elected governments, which have thus become less prone to intrigue. Still, a strong prime minister being barred so easily without trial is bad for stability. Politicians should plug this gap.

India and China have grown fast despite high sleaze.

But the main issue is not the vague sub-clauses of 62/63. They just allow frivolous litigation for minor, non-criminal issues and thus must still be amended. Always viewing them legally, MPs haven’t been barred on moralistic charges but for legal crimes, like forgery, under the sub-clauses. Even Sharif was removed primarily not via 62/63 but the Representation of People’s Act laws on disclosing assets. Since the judges found him guilty of breaking this law, they also applied Article 62(1)f for dishonesty.

In MNA Iftikhar Cheema’s 2016 disqualification, the court 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.

The main issue is Article 184(3), which has seen MPs disqualified 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 Khan. So, why is the court 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 the 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 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 a security establishment 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 society and requires long-term antidotes.

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 for corruption subsequently 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.

The writer is a senior fellow with UC Berkeley and heads INSPIRING Pakistan, a progressive policy unit.

Published in Dawn, August 15th, 2017