End the crisis | Najam Sethi

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The moment of reckoning for Nawaz Sharif has come. The three judges of the Supreme Court bench have digested all the arguments and will now decide whether Nawaz Sharif is “sadiq and amin” for speaking the truth or lying about the sources of his wealth. If the bench believes he has lied, he will be disqualified from being a member of parliament and holding the office of prime minister. Moreover, the bench will decide whether the case merits being sent to an accountability court for further investigation and criminal prosecution of one or more members of the Sharif family, including Mr Sharif.

The Sharifs’ lawyers have punched holes in the JIT’s credentials and conclusions. But the bench has shrugged away the charge by saying it is not, in any case, bound by the JIT’s findings. Instead, the judges aver that the Sharifs haven’t answered relevant questions about the source of wealth that led to the purchase of the London flats many years after they were in possession of the property. The Sharifs’ lawyers ask how can Nawaz Sharif explain the money trail of a property he does not own in the first place. The opposition counters if that be the case why did Nawaz Sharif stand on the floor of Parliament and declare that he would answer all questions and provide all documents relating to the wealth of the Sharif family? Forget everything else, say the judges in frustration, just show us how the flats were legitimately bought and we will wrap up the case. The Sharifs argue that if the JIT had asked the Qatari prince to confirm his involvement in the matter as the primary source of funds for the flats, this question would have been answered satisfactorily. Why the JIT didn’t question the Qatari prince – who expressed a readiness to be examined — remains a mystery, and one that weakens the legal case against the Sharifs.

The case is both simple and complex. It is simple in the sense that if at least two of three judges on the bench hold the prime minister guilty of lying, then it is curtains for him. It is complicated in the sense that if two of the three judges hold him innocent and one holds him guilty, how will this bear on the status of the judgment, since two out of five judges of the original bench had already declared him guilty? Unfortunately, the judges have not clarified whether a majority of three will decide Mr Sharif’s fate or a majority of five.

There are other issues to address. If the SC is not a trial court, as per the constitution, how can it hold a trial of Mr Sharif or any member of the Sharif family for corruption? By this argument, if the SC thinks that there is, prima facie, a criminal case to be made out against one or more of the Sharifs, it must refer the matter of a proper trial to an accountability court. But on the other side of the coin is the fact that two out of five judges of the original bench have already declared Mr Sharif to be not “sadiq and amin” on the yardstick of Article 62/63 of the constitution and disqualified him from being a member of parliament. An additional complication has arisen because there is both a disqualification precedence – MNAs were disqualified directly by the SC because they could not verify the authenticity of their BA degrees – as well as a strong judgment by Justice Asif Khosa, one of the two judges who have disqualified Mr Sharif on the basis of 62/63, against clutching at Article 62/63 for disqualifying members of parliament because that will open a Pandora’s box of arbitrariness and uncertainty. Confusion and contradiction is further compounded by certain written and oral remarks of some judges that point to preconceived notions and prejudices against powerful and wealthy men (like Mr Sharif).

Parallel to the trail of Mr Nawaz Sharif in the SC, there is a case against Imran Khan in the SC that mirrors much the same sort of issues. The SC is asking him to show the money trail of his London flat, of his Bani Gala property and of his party funds from foreign sources. The problem is that Mr Khan is having as much difficulty convincing the judges investigating him as Mr Sharif. If the two groups of judges trying them base their judgments on two different sets of laws and legal precedents, then all hell will break loose. But if they concur, then the likelihood is that both Mr Khan and Mr Sharif will meet with the same “innocent” or “guilty” fate.

It would be good for the country if the coming judgments do not deepen the political crisis. But if they do, it will reinforce the old wisdom that judges may wade into raging political matters only at peril to the rule of law and constitution, to the institution of the judiciary and to their own personal selves.