Who Killed Abdul Quddus Shaikh?

(Published in Naya Daur nayadaur.tv on the 10th of July, 2019)

Imagine being a dutiful officer of the state. Imagine the promises you made to yourself that you would play your part in ensuring a better tomorrow for future generations and your unborn children. Imagine fulfilling those promises now with the then unborn children now waiting for you at home. Imagine refusing bribes and ignoring threats; being steadfast in your resolve.

Imagine being proud of an operation you just conducted that exposed a gang of criminals and resulted in significant financial gains for the state. Imagine going home after a day spent living up to your oath and the expectations of more than 220 million people who pray day and night for their state servants to be honest, upright and devoted to their duty without fear or favor. Imagine being that kind of an officer; fulfilling your dream where you wanted to be the change you want to see. Imagine being Dr. Abdul Quddus Shaikh.

Imagine being pulled out of your car by thugs, being beaten and kicked, thrown to the ground, getting rifle butt blows to your head and face, being outnumbered, alone and helpless, knowing that any one of these blows could be fatal. Imagine the resolves, the promises, your children, your family and your life flashing before your eyes while slowly and gradually these animals in human sheaths gnaw at your life; at the resolve of others like you in the service; at the writ of the state and at the expectations of over 220 million people.

Imagine knowing you are not the first to suffer the consequences for being loyal to your oath and dedicated to your duty; imagine hoping you are the last.

While we were busy in controversial videos, rebuttals and denials, diplomatic embarrassments faced by the government and a lot of other nonsense, something grave was unfolding. A mother was losing her son; a wife her husband; children their father; state a valuable servant and its writ; and a people their hope for a better tomorrow.

A Deputy Collector Customs was fighting for his life because a gang of smugglers wanted to set an example, to show their might and to flaunt their nonchalant disregard for the state and all that it holds sacred.

Dr. Shaikh lost his battle on the 9th of July and left his family in grief, his children orphaned and all of us a little more perturbed; a little more desperate to see the state unleash its wrath on the culprits and bring down on their heads the iron hammer that is its writ. But the hammer is rusty.

Each time a public servant was killed by criminals he had brought to justice, each time those criminals remained “unidentified”, each time a complainant was forced to retract his statement by the powerful or the rich, each time a union’s protest brought the government to its knees and forced it to amend or rescind a legitimate and valid piece of legislation, each time the state caved in to the demands made at dharnas and lock-downs by fanatics and entered into agreements with them; the hammer rusted.

Each time the hammer had to shift hands because the civilians were too corrupt or the dictator got too dictatorial, the hammer rusted. Each time the hands on the hammer did not agree upon where it needs to fall, the hammer rusted. Each time the people’s mandate was stolen and elections were rigged, bringing in a government that the people didn’t own or whose mandate they didn’t deem legitimate, the hammer rusted.

Each time the judiciary was refrained from doing its job of delivering justice by way of incompetence, bribes or intimidation; by secret blackmailing or by phone calls from Chief Ministers to Chief Justices, the hammer rusted.

Everyone; each and every one of us played our part in weakening the writ of our own state; in pushing justice out of our own reach; in the murder of Dr. Abdul Quddus Shaikh and many before him.

So please go ahead, do condemn the murder, do curse the murderers, do show your outrage, do criticize the state for inaction, do extend condolences to the bereaved family, do pity the orphaned toddler, do make promises of never letting this happen again, do make tall claims, do show solidarity across institutions; for a few days or more as we always do.

But for heaven’s sake, for the first time, let us also accept responsibility for our part in this. As politicians, generals, judges, journalists, bureaucrats, religious leaders, union leaders, doctors, lawyers, as whosoever we are; it is all of us and the fact that we did not do what we needed to and did what we ought not have done that has rusted the hammer and thrown the writ of our state to the dogs. Let us accept responsibility and let us begin mending.

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Within or without the rotted system

(Edited, altered version published in the Daily Times; Sunday the 7th of July, 2019.)

In October 2012 a bakery employee in Lahore was thrashed by Elite Force personnel. The victim alleged in his FIR that he was beaten on orders of the son in law of the Chief Minister Punjab because he refused service to the CM’s daughter or made her wait. In January, 2013 the accused were acquitted when the victim retracted his statement and said he did not want to pursue the case anymore.

Court records and police diaries are replete with retractions and withdrawals of statements and FIRs by the poor and weak complainants in favor of the rich and powerful accused.

In June 2014 armed police personnel opened fire on a crowd in model town killing fourteen people including two women. Till date, justice evades the actual victims while demands for justice keep resurfacing whenever politically convenient for other ‘beneficiaries’.

In 2015 a bright young career officer Muhammad Ali Nekokara was dismissed from service over alleged charges of inefficiency and misconduct. His ‘inefficiency’ was that he opined against the use of force to stop unarmed civilian protestors in Islamabad. An officer of unquestionable integrity, having a remarkable record and impeccable credentials; Nekokara remained dismissed from service for three years while several incompetent, dishonest officers continued their service and were rewarded for their unflinching loyalty, not to the state but to those who ruled. Many were given out of turn promotions which they held until the highest court of the country had to tell the government that such promotions were illegal.

During the past thirty years all governments allocated development funds to the members of Parliament and provincial assemblies; a practice not provided for in law or the constitution.

Since 1988 all major political parties including the Pakistan People’s Party, Pakistan Muslim League Nawaz, Pakistan Muslim League Quaid e Azam and now Pakistan Tehrik e Insaf, have indulged in encouraging floor crossing where members elected on one party’s ticket are encouraged to join another party which happens to be in government.

In most of the democratically elected governments of the past three decades local governments remained either absent or superficial; in complete contrast to the dictates of Article 140 of the Constitution.

The list is long. The point here is that all the above quoted incidents and actions, including many others, were either illegal or extralegal manipulations of the system. System here is the confines within which a state has to operate; drawn by the Constitution, the laws, principles of justice and democratic norms. Such actions did not go outside of the system per se, instead while remaining within it they consistently battered, hammered and dented the system into a completely unrecognizable form. Fundamental rights remain part of the constitution; however, the state’s guarantee of their protection is practically absent. Access to justice continues to evade more and more masses that do not hold power, wealth or clout.

Using this battering and corruption as a justification there were periodic interventions where the military took over; absolutely by Zia, partially by Musharraf and, as alleged by critics today, by proxy this time. The one thing common among all the interventions is that by virtue of brute force those who take over have the freedom to go outside of the system, and they do almost every time; no boundaries, no confines. The rotted system is left to heal its self while the players move to a different landscape. The dying planet is put on ventilator and the game is shifted to space. The powerful become the weak, oppressors become the oppressed, tyrants become revolutionaries and the fight begins for bringing the pieces back to the chess board where the rules are, where King is the King and Queen is the Queen and there are no other pieces that hold power over them.

The old debate is rekindled; is a bad democracy actually better than a good dictatorship? Questions are re-asked; Can democracy self-sustain and self-heal if given time? Are unaware, uneducated voters able to vote wisely? Can there be actual accountability when the powerful ruling class controls all? Is a distorted, battered, deformed system better than no system at all?

The masses don’t care about these debates. They don’t care about the system being parliamentary or presidential. They don’t care if there is a system at all. Why? Because our people have not been allowed to go beyond what’s necessary; food, clothing, shelter, education, health and access to justice. There have never been any real or substantial measures for provision of these necessities to the masses, neither by the democrats nor by dictators. Democracy is when power resides with the people, not when elections are rigged, when votes are bought or when the public gets only fifteen minutes of attention in the elections and is then forgotten for five years. There is no democracy when the demos can’t have their grievances redressed.

There are two measures that can put our country on the path to progress and mend the system which desperately needs mending not escaping from.

One is strengthening the judiciary by way of reforms that include appointments strictly on merit, stern and expeditious accountability, freedom from mafias including the mafias in lawyer’s community and media, freedom to adjudge and independence from all interference. Only when a country’s judiciary is free and qualified to decide without fear or favor can wrongs be righted; and only when wrongs are righted do wrongs begin to vanish, not flourish.

Second is meaningful and substantial electoral reforms that guarantee free, fair and transparent elections. The only way to give people power is to give them a free and fair election. Let them hold their politicians accountable. When their right to that accountability is robbed by the powerful politicians or military dictators, they are robbed of their existence.

If you need to go out of the system to do that, fine. But when everything but the meaningful and needful is done, there is no use. After a few years the ventilator comes off and the system begins to strive for its life yet again. Weak and feeble, it cannot defend itself against more hammering. There is a limit to the dents it can take and to how many times a ventilator can be used.

ایک پہلوان نے ہم پر بہت ظلم کیا

ایک معتبر شخص اپنے سات دوستوں کے ساتھ سفر پر جا رھا تھا کہ راستے میں انھیں ایک نحیف سا فقیر ملا۔ فقیر نے اس شخص سے اللہ کے نام پر پیسے مانگے تو ایک دوست نے فقیر کو تھپڑ دے مارا۔ فقیر غصے میں آ گیا اور کہنے لگا کہ ابھی کے ابھی اپنے اس بد تمیز دوست کو تھپڑ مارو اور خود سے علیحدہ کرو ورنہ میں بددعا بھی دوں گا اور یہاں سے جانے بھی نھیں دوں گا۔ یہ کہہ کر فقیر وھاں بیٹھ گیا۔ معتبر شخص نے کچھ دیر سوچا, اپنے دوستوں کو دیکھا اور پھر وہ بھی راستے پر بیٹھ گیا۔

معتبر شخص اور اس کے ساتھی بیس روز تک وہاں بیٹھے رہے اور فقیر سے کہتے رہے کہ یار جانے دے ہمیں ضروری کام ہے، مگر فقیر اپنے مطالبے پر قائم رھا۔

 بیس روز بعد اچانک معتبر شخص کو خیال آیا کہ وہ آٹھ ہیں اور فقیر ایک, وہ بھی نحیف سا، وہ کیسے اتنی دیر  سے راستہ روکے بیٹھا ہے۔ اس نے اپنے ساتھیوں سے اس خیال کا تذکرہ کیا تو وہ بھی پہلے حیران ھوے اور پھر سر جوڑ کر بیٹھ گیے۔ کچھ دیر بعد فیصلہ ھوا کہ اپنی عددی برتری کا فائدہ اٹھایا جائے۔ لہزا طے پایا کہ سات دوستوں میں سے ایک فقیر کے پاس جائے گا اور اسے راستے سے ہٹائے گا۔ معتبر شخص نے بہرحال یہ شرط عائد کی کہ فقیر کے ساتھ نا تو سخت زبان استعمال کی جائے گی نا ہی اسے ہاتھ لگایا جائے گا۔

یوں ایک دوست فقیر کے پاس گیا اور اس کے سامنے کھڑا ھو کر اسے راستے سے ھٹنے کا کہنے لگا۔ فقیر اٹھا اور اس کو ایک زناٹے دار تھپڑ رسید کیا، پھر دوسرا، پھر تیسرا۔ تھپڑوں کا یہ سلسلا کچھ دیر تک جاری رہا اور کھانے والے کے دوست دور سے یہ نظارا دیکھتے رہے۔ لگ بھگ آدھ گھنٹے بعد لال سرخ گالیں لیے وہ دوست واپس آیا اور بولا ہماری عددی برتری کا فائدہ تب ہو جب ہم سب یا ہم میں سے کم از کم تین دوست جائیں اور زبردستی فقیر کو راستے سے ہٹا دیں۔ معتبر شخص نے یہ تجویز رد کر دی اور تھپڑ زدہ دوست سے بیٹھنے کو کہا۔

اتنے میں وہاں سے علاقے کے ایک مشہور و معروف پہلوان کا گزر ہوا۔ معتبر شخص نے آواز دے کر پہلوان کو پاس بلایا اور اپنی روداد سنا کر مدد کا تقاضا کیا۔ پہلوان یہ انہونی سن کر حیران ہوا، وہ کبھی ان آٹھ مسافروں کو اور کبھی نحیف فقیر کو دیکھتا۔ آخر اس نے فیصلہ کیا کہ فقیر سے حقیقت دریافت کرے۔ وہ فقیر کے پاس گیا اور ماجرا بیان کرنے کا کہا۔ فقیر نے تھپڑ بارے بتایا اور کہا کہ میں نے تو غصے میں مطالبہ کر دیا، مجھے کیا پتا تھا کہ یہ لوگ مجھے دھکے دے کر ہٹانے کے بجائے واقعی بیٹھ جائیں گے۔ پہلوان مسکرایا اور اس نے فقیر سے پوچھا کہ اب کیا چاہتے ہو۔ فقیر بولا اب تو میرے دو مطالبے ہیں؛ ایک یہ کہ تھپڑ مارنے والے دوست کو تھپڑ مارا جائے اور علیحدہ کیا جائے، دوسرا یہ کہ اب یہ سب باقی کا سفر اپنے کپڑے اتار کر ننگے ہو کر کریں۔ پہلوان یہ سن کر ہنسا مگر فقیر کے اصرار پر مطالبے لے کر مسافروں کے پاس آیا اور انہین آگاہ کیا۔ ابھی مطالبات سنائے ہی تھے کہ معتبر شخص نے اپنے ساتھی کو تھپڑ مارا اور چلتا کیا، جبکہ باقی دوست کپڑے اتارنے میں مصروف ہو گئے۔ چند ہی لمحوں میں سات کے سات الف ننگے ہو گئے۔ فقیر زیرِ لب مسکراتے ہوئے ایک طرف ہو گیا اور مسافر روانہ ہو گئے۔

کچھ سفر طے کرنے کے بعد جب ان کا گزر ایک شہر سے ہوا تو لوگ یہ نظارا دیکھ کر ششدر رہ گئے اور عریانی اور بے حیائی کا ماجرا دریافت کیا، جس پر معتبر شخص بولا ’کیا بتائین بھائی، ایک پہلوان نے ہم پر بہت ظلم کیا‘۔

Supremacy of the Supreme

Tussle between the bar and bench, which took an ugly turn last week, has finally been settled. What looked like an irresolvable conflict saw a surprise conclusion when Executive Committee of the Punjab Bar Council (EC-PBC) decided to exercise its unwritten, unspoken, unreal and unimaginable jurisdiction. By assuming appellate jurisdiction over high court, EC-PBC has set aside the five member bench’s order dated 21-08-2017 whereby license of an advocate had been suspended.

This pro-active step of the PBC is being criticized by some who are oblivious to the concept of ‘jurisprudential evolution’; and who rely a tad too much on concepts like common sense and sanity.

First; you cannot ignore the outright honesty of EC-PBC in admitting its own authority, or lack thereof, to pass such an order. If you read the operative lines carefully and add proper punctuation, you can’t ignore this subtle admission. Following is what a man deprived of “intellectual insight” may have read;

“So the impugned order dated 21-08-2017 is declared to be illegal, void, ab-initio, without lawful authority and jurisdiction,..”

This is how those capable of seeing through the legal jargon and spotting the subtle honesty may have read it;

“So the impugned order dated 21-08-2017 is declared – without lawful authority and jurisdiction – to be illegal, void ab-initio..”

Surprisingly, some elements in the legal community have out rightly rejected this visionary, revolutionary and necessary display of judicial activism from a non-judicial body. Hmph! Was this move unprecedented? Yes. Unreasonable? Yes. Unusual? Yes. Unnecessary? No, well yes but then no.

Lawyers and the PBC were left with no other option. This was the only way to assert their dominion over all other state entities. “We didn’t like doing this, we didn’t know what we were doing either, but it had to be done..we think” was the assertive statement from a well known lawyer who is thought to be behind this brilliant move.

Following suit, a few of Lahore’s leading law firms have decided to constitute benches comprising of their most senior partners to adjudicate appeals in cases decided against the firm. It is likely that PBC may discourage such a move owing to its undoubted, unquestionable, unseen, unnoticeable and unflinching belief in the rule of law.

Most excited of all on hearing of this order was a close aide of the now ousted Prime Minister. He couldn’t wait to break this news to his leader. On condition of anonymity he shared his party’s probable plans in light of this development;

“We are not going to waste time and money on review petitions before the Supreme Court. We had already pointed towards the people’s court. Guided by this revolutionary measure, we may constitute a bench of our own to decide our appeal against the Supreme Court’s verdict. We may not even need to, since our GT road rally can well be taken as the people’s court. You may see an order soon saying that the honorable bench of the people’s court comprising of 10000 honorable people has set aside – without lawful authority or jurisdiction – the supreme court’s order.”

The EC-PBC’s order will meet criticism from the bench, also from some members of the bar, but we shouldn’t lose sight of the big picture here. Thus, as per an anonymous source in PBC,  the council is mulling over issuing a direction to all lawyers making it mandatory for each law office to hang, on a prominent wall, a big picture.

My brothers in the fraternity who couldn’t see the order for what it is, I ask you to revisit and reconsider. How hard is it to see that we stand for the rule of law and nothing can stand in our way, not even law itself. For those who still cannot see the wisdom in this move; to you my dear sirs; the Emperor will always be nude.

Fraternity, Bar and Much Needed Reforms

You need badgers; lawyers, usually young ones, who would decorate their chest with a badge carrying the name of, and showing support for, a particular candidate for a particular seat in the bar’s cabinet. You need to host teas, lunches and dinners in honor of your voters and supporters. The number of attendees, and the amount spent, at times foretells a candidate’s fate in the elections. You need to pay license renewal and registration fees for lawyers and effectively propagate how many millions you have spent for the “welfare” of your fraternity.

You need demagoguery more than anything else; a candidate has to be a champion demagogue. There are promises to work for welfare of the bar and bar members. But before that, and way more imperative, is the assurance of his support whenever, wherever and however needed. He must promise that he will stand with the bar in any dispute. It has to be a pledge of unflinching support, subject to no consideration whatsoever.

Such attributes do not make bar politics entirely dissimilar to electoral politics in general. In fact there is less disconnect between the voter and the voted in the bar. However, bar politics has played a significant role in harming and polarizing the legal fraternity; wherein intellectual, ideological and ethical disparities are immense and grow consistently.

There’s a south pole; densely populated owing to better conditions and a more suitable environment for the indigenous. And the north pole; which seemed uninhabited for the silent and non-interfering nature of its inhabitants, however, of late there have been signs of life; thank God for that. Ideological path that leads to the north is jagged and intricate, discouraging many a traveler even before they embark upon the journey. Summer prevails in the south, not of discontent but of disorder, disobedience and disrespect, as has been evident from several instances of abuse of power, violation of ethical codes and misuse of process. One wishes for winter and, maybe, winter is coming.

Politics, or bar politics, is not inherently vile or disadvantageous; it is the form it has taken that makes it a cause for concern. For instance, in practice, it is not essential for any candidate to swear allegiance to the constitution or law because that is not a priority for the voter; not the foremost priority at least. Loyalty to the fraternity is what matters most. This puts the concept of ‘rule of law’ in considerable peril. Man has never been a fan of rules and laws. Unchecked and without a code to govern him, man would invariably choose self preservation and self interest over community welfare.

In recent years the trend of pressurizing courts for relief has become a norm. Tactics may vary from using a cabinet member to bringing numbers to the court. For newcomers to the fraternity, knowing and understanding the law is becoming more and more redundant. Being an apt litigant is considered unnecessary, having support of friends and colleagues is deemed more fruitful for the purpose of success. Fresh graduates thus have to ask themselves if they want to be a “good” lawyer or a “successful” one, since unfortunately, these are now two different objectives.

Young lawyers are greater in number, thanks to the sharp increase in inductions over the past decade. They comprise a huge chunk of registered voters and of voter groups. When candidates offer them unconditional support, they promise subservience to their whims and wishes. A youth that ought to have been mentored and nurtured by seniors, instead becomes the guide.

This is a noble profession that, as per my firm belief, still comprises more good than bad elements. Ignorance of and complacency towards certain evils over the past few years, along with some ill-conceived measures, has put our fraternity in jeopardy and brought a bad name to us among the masses. Winter ought to come; reforms must be made. There may only be a minority of black sheep among the black coats but the majority is being exploited; their silence and indifference is only aiding the exploitation. This has to stop. The bar and bench have differences, and neither is perfect. What we need to understand is that we are not the bench, we are the bar. Unless we rid ourselves of all imperfections, or most of them at least, we won’t have a high moral horse to mount.

It is time we pay attention to the elephant in the room that is fake degrees and credentials. In addition to verifying educational qualifications of newcomers, those already enrolled as advocates should offer themselves for scrutiny. There should be a strict ban on all political activities for every lawyer in the first five years of his/her practice. They should only be enrolled as a registered voter after being certified to have appeared before courts and pleaded a certain number of cases. We need to surrender self-regulation, or at the very least, regulation by an elected body. Instead bar disciplinary committees should have, as members, well reputed members of the fraternity who do not depend for votes or favor on the very community they aim to discipline and check.

The legal community, without desperately needed reforms, is trying to dig its way out of a hole. If we don’t act now, we will only go deeper and deeper into the abyss.

The Gulalai Drama and our Media’s Incitement to Idiocy

(An unfortunately necessary disclaimer: No the word “drama” in the title does not mean what you think it means. Please look it up.)

The alleger alleges, the accused defends and a few million spew nothing but nonsense. Equally abhorrent are both; the tendency to out-rightly reject Gulalai’s accusations and to believe them without any investigation; the attacks on her person and family and the attacks on the accused on mere allegations. Have we lost all objectivity? Is the word “polarized” now insufficient to describe our social and political discourse, have we gone way beyond being just opinionated? Has idiocy actually and finally taken over?

A woman comes forward with an allegation of sexual harassment against her party’s chairperson and another senior leader along with allegations of corruption against a provincial government. Sexual harassment immediately takes centre stage since corruption is immaterial as long as it exists on “my” side of the line. The woman is questioned, grilled, doubted and then questioned some more. By an investigative agency? No, by spokespersons of the accused and by our all righteous media. Wrong? yes. She is also supported, defended and encouraged. By her family or lawyers? No, by arch rivals of the accused party, some confused rights activists and another segment of our all righteous media. Just? No.

They say Gulalai has shown great courage by hurling accusations at a popular and powerful person. Really? When has it been difficult to accuse a politician? From allegations – some proven absolutely false later on – of rape, corruption, treachery to those of immorality and indecency, hasn’t the politician always been the easiest target? Yes, as a woman raising her voice against a man in our very patriarchal society, Gulalai may be deemed courageous. But then again, the accused being a politician opposed and despised by the ruling party makes it a tad easier.

They say this incident has brought to light the woes of women and the hardships they face in our male dominated society. Even if it does, its aftermath has brought to far brighter light the rise of idiocy, intolerance and bigotry. Woes of women have been brought to light by victims before, when we conveniently chose to look the other way. Amna Bibi; the 18 year old rape victim for instance, who kept struggling for justice and eventually set herself ablaze in front of a police station because not enough of us thought she exposed the woes of women, poor and the ordinary, because no minister or leader called her his sister and promised justice, because no channel ran her story over and over again or named the culprits again and again and again and because she failed to trend on twitter. This does not mean that just because we failed her, we ought to fail every subsequent victim of physical or verbal abuse, but this does reflect on our selective morality.

They say Gulalai does not make sense and her allegations seem made-up, concocted and part of a plot to defame a political party and its leadership. We are all judges without robes, rostrums and courts. With a very few exceptions, a huge majority has already given their verdict for or against Gulalai and the sad fact is that no real verdict from an actual judicial forum is going to change it. Responsible, or so they appear, politicians have suggested burning Gulalai’s house to the ground, other enthusiasts have incited fellows to throw acid on her, all the while screaming how women are not unsafe. Defenders of the accused have presented brilliant logics to question Gulalai’s integrity and decency by referring to her sister’s attire. These may not have been issues of serious concern had they not been presented, repeated or endorsed by our media.

They say Khan has a history of “misadventures” when it comes to women around him. Thus, even if Gulalai has not presented any evidence yet, she ought to be believed without question. Some have even gone on to vouch for her on oath without seeing the evidence.

A certain channel holds that since Khan did not respond to the allegation immediately, it implies that he is guilty. Another says that since Gulalai chose to keep mum over the alleged harassment for a few years, it implies that she is dishonest. Both stances are equally ridiculous.

Electronic and social media; talk shows, tweets and posts make your head spin. They render redundant the looming issues of harassment, women empowerment and equality before law and instead make you wonder how the poles in our polarized society are ever expanding. Bigotry is the only norm in debate and partiality clouds our judgment. With the media aiding and abetting, only the worse awaits us.

The Panama Verdict; Sharpening of the Sword

On July 28th, a three member special bench of the Supreme Court announced their judgment; followed by a final order of the five member larger bench, in the infamous Panama Papers Case.

The Prime Minister of Pakistan was declared dishonest and disqualified from being a member of the National Assembly under Article 62(1)f of the Constitution.

The judgment was always politically controversial even before it was authored and announced. Unfortunately it has also become a legal controversy; at the center of which lies the all mighty and all powerful Article 62(1)(f).

The late General Zia, in his attempted ‘Islamization’ of the Constitution and Pakistan, added clause (f) along-with four other islam-ifying clauses to Article 62, making it an essential pre-requisite for any person aspiring for election as a Member of the National Assembly that he pass the test of being “sagacious”, “righteous”, “non-profligate”, “sadiq” and “ameen”. General Zia’s islamization of other laws has haunted the country ever since. Thirty-two years later, his islamization of Article 62 has come to haunt his own mentee.

I, however, find the debate against Article 62(1)(f) quite empty and hollow. True that analysts, judges, politicians of the highest caliber have opined on the impracticability of such stringent conditions on character. True that the clause made its way into the Constitution in an undemocratic regime and thus did not represent the true will of the people. But the question is; is Article 62(1)(f) a living and breathing part of our Constitution? Has it been removed by any of the subsequent “democratic” regimes? The answers are  Yes, and No respectively.

As long as any provision is a part of my country’s supreme law, I would like it to be enforced please. It is the Supreme Court’s duty to give effect to the Constitution. It is the Parliament’s job to give to the Supreme Court a Constitution to go by. The argument that a statute or any provision of a statute is not practicable or does not represent the Parliament’s will yet remains a part of the legislated law, is absurd and without merit. Thus, in my humble opinion, the Supreme Court giving effect to Article 62(1)(f), regardless of the floodgate it opens, is perfectly legal and in line with the Supreme Courts duty to uphold and abide by the Constitution of Pakistan.

The next objection raised in the politico-legal controversy was that the Supreme cannot, and ought not assume role of a trial court under Article 184(3). The three member special bench has stood its ground with regard to their original opinion that the Supreme Court cannot itself declare the Prime Minister corrupt and convict/disqualify him, or any parliamentarian, on said grounds acting under Article 184(3) of the Constitution. They have thus ordered that the allegations arising out of the Panama Papers and the consequent petitions be investigated, and the accused be tried, under Section 9(a)(v) and 14(C) of NAO. They have maintained that under 184(3), without a proper trial entailing examination, cross examination, exhibition and scrutiny of documents, no one can be convicted or declared to be dishonest. This was their original view taken in the majority judgment pronounced on the April 20th and this is their view now. It was the dissenting judges who held that the matter does not involve intricate questions of fact as those framed by the three honorable judges, instead the question was whether the Prime Minister has been dishonest in his speeches and statements. The dissenting Judges believed that there was enough material before them to conclude that Respondent No.1; the Prime Minister has been dishonest and thus stands disqualified under Article 62(1)(f) of the Constitution and Section 99(1)(f) of the Representation of People’s Act. The other three judges, in the April 20th judgment, however held that the material available was neither sufficient nor conclusive and thus recommended formation of a JIT to first probe into intricate questions of fact.

So why was the Prime Minister declared dishonest and disqualified by the three member bench now, that too unanimously? What new material surfaced, which was not available then?

The Prime Minister has not been disqualified on the basis of any revelation in the Panama Papers, nor for any allegation contained in the Petitions. As those were held to be subject to further scrutiny and trial in the unanimous judgment. The Prime Minister has instead been disqualified on his own admission.

During the course of its investigations into the Panama Papers, the JIT discovered that Mr. Muhammad Nawaz Sharif was Chairman of Capital FZE Jebel Ali; a Dubai based company. And that a salary of 10,000 dirham was receivable by him against that position. This, like all other matters now referred to NAB, was an allegation contained in the JIT’s report. However, when confronted by the special bench during post JIT report hearing, the Prime Minister’s counsel – acting on the Prime Minister’s behalf and instructions – admitted that the Prime Minister was in fact Chairman of Capital FZE during that period and that he was entitled to the said salary, however he did not withdraw it. Thus this allegation now became an admitted and established fact slipping out of the sack that contained all unproven and denied allegations which have been sent for a proper probe and trial. As per our laws of evidence; the Qanun e Shahadat Order, any allegation that is admitted need not be proven.

It is interesting – unfortunate for the now disqualified Prime Minister – that this small admission has cost him so gravely. Had the admission not been made, the Chairmanship of Capital FZE and any salary in that regard, would also have been sent to NAB for a proper inquiry and trial.

Now coming to the strictly legal controversy; has the Supreme Court gone too far in applying the criteria set by the words “sadiq” and “ameen”? The Prime Minister has been disqualified for not declaring an asset that was not acquired or received when the declaration was due. As per the Supreme Court’s own judgment, the word “asset” has not been defined in any statute including the Representation of People’s Act. So there was no law that qualified any ‘receivable’ as an asset. The ambiguity has only been elucidated upon now in the honorable Court’s judgment. So was any receivable an asset in 2013 in the absence of any law or precedent declaring it so? Can the precedent set today be given retrospective effect? The contention makes sense in as much as the absence of a clear definition of the word “asset” is concerned. Was the Prime Minister dishonest by virtue of not declaring something he could not know he was supposed to declare? Shouldn’t this qualify as an honest mistake instead of a dishonest omission? These are questions that the Supreme Court has, by implication, answered in the negative and answered definitively. A provision that was already considered too stringent to be practicable as it required the highest standards of honesty, has now gone up a notch or two. As per this precedent, an unintentional mistake may qualify as a dishonest act and will be sufficient to disqualify anyone from being elected as a member to the legislative assembly.

The sword hung over the politician’s head by a dictator, kept in place by politicians themselves, is now sharper and heavier. The rope that holds it is weaker and thinner.

Is this irregular? Apparently yes. Is it illegal? Absolutely not, since this definition and scope has been given to a provision of the supreme law of the land by the Supreme Court of the country. Thus, it is now a law and has to be abided by and enforced. If it turns out to be an erroneous interpretation, it will be changed and altered by subsequent precedents or legislation. This is the evolution of the systems that we so dearly dreamed of, and now seem petrified by.