WITH Nawaz Sharif out on medical bail, many ask if a convict deserves such unusual relief. They say this may be the first time a convict in Pakistan got such relief and it’s unclear if he is even gravely ill. His fans raise a more basic issue. They say the legal processes behind his de-seating and conviction were even more unusual and thus he isn’t a convict but a political prisoner who deserves full relief.
M.K. Gandhi and Nelson Mandela were political prisoners. So it seems odd to call a lesser politico like Sharif one, who, using layperson lenses, seems very corrupt even to me. But many credible sources saw corrupt mortals like Brazil’s Luiz Inácio Lula da Silva and Malaysia’s Anwar Ibrahim as political prisoners too; stature and perceived dishonesty matter not under global definitions.
The Council of Europe defines them as persons jailed by rulers via unfair legal processes due to political enmity. Calling Sharif one seems odd given that he was the ruler when de-seated. But his fans say that Pakistan’s real hidden rulers can and have often removed assertive civilian rulers covertly via dubious cases.
That Nawaz had disputes with these forces on ties with India and jihadists is known, fans say. According to them, many controversial legal processes were used to de-seat and jail Nawaz. The Supreme Court used Article 184(3) to start a fast-tracked public-interest inquiry saying that the Panama leaks charges against a sitting prime minister made it urgent to investigate him quickly.
Nawaz Sharif’s fans say the legal process was flawed.
This unusual Supreme Court inquiry against a prime minister was criticised for blurring the judiciary-executive divide as executive agencies usually undertake such probes. Some say this precedence should now be used to fast-track the cases (some very serious) pending for long against the current prime minister, eg, the Banigala land, helicopter misuse, PTV attack and the PTI foreign funding amongst others. They say since the PTI is now the ruling party, accountability must focus much more on its Khyber Pakhtunkhwa era, as the party demanded for the PML-N during its era.
Since executive agencies were delaying matters, I had supported the Supreme Court inquiry against Sharif with the proviso that, given its unusual nature, later processes must strictly follow clear law and precedence.
But some find even later processes unusual, eg when at the end of the inquiry, the court de-seated Sharif on a side point under Article 62(1)(f) for not reporting a receivable asset (unpaid salary from son) in his poll forms. Some say that there was no proper trial as guaranteed by Article 10-A where an accused is tried on a specific charge clarified at the start, and that the law allows use of cash accounting under which receivables aren’t reported at all while income tax law requires individuals to report only the salary received.
Since it was the apex court’s verdict, no appeal was held before new judges. So critics say his de-seating involved unusual inquiry, absence of trial, doubtful grounds and lack of appeal.
Fans find the verdicts that led to his removal as party president and lifetime disqualification unusual too, as both stemmed from his initial de-seating. They also say that expanding the remit of Article 62(1)(f) from MPs to party officials represents a new law, which only parliament can make.
Moreover, they point out that when MPs are de-seated under poll laws by election tribunals for hiding assets, they are sometimes allowed to run in the by-elections. But MPs de-seated for hiding assets under Article 62(1)(f) now become disqualified for life for the same offence. They find it odd that people are disqualified for seven to 10 years only for far more serious offences. They also ask why there should be one uniform lifetime sentence under Article 62(1)(f) when the severity of offences may vary so much across cases.
They also critique the trials that led Sharif to jail. They say intense pressure was applied on the lower judiciary to issue his first verdict weeks before polls, which may have affected the results. This verdict was actually later suspended by Islamabad High Court due to major prima facie errors. A second case was nixed by a NAB court.
All these critiques seem weighty but a firm conclusion is elusive. Also, even if the verdicts are all weak, it has been pointed out that they could be due to a coincidental series of mistakes. But the chances of that seem low to others. Given the high political stakes, human rights agencies and the apex court under the new chief justice may consider reviewing the legal processes of at least the closed cases where no appeal is now possible otherwise.
The writer is a senior fellow with UC Berkeley and heads INSPIRING Pakistan.
Published in Dawn, April 9th, 2019