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Judiciary’s coup

Use of Islamic injunctions to dismiss Nawaz Sharif could set a bad precedent, undermine democracy

Written by Farzana Shaikh |
Updated: August 1, 2017 11:05:23 am
nawaz sharif, pakistan, panama papers, nawaz sharif sc judgement, pakistan new pm, nawaz sharif party, pakistan news, world news For Nawaz Sharif, this ouster marks his third premature exit. (File photo)

Every once in a while Pakistan’s contested legacy of a state founded in the name of ‘Islam’ bursts into the public realm to threaten the country’s fragile democratic culture. From its laws of evidence which deny equal status to the testimony of Muslim women to its laws against blasphemy which penalise its non-Muslim minorities — both introduced by a military dictatorship in the 1980s — Pakistan’s appeal to “Islamic injunctions” has long served its non-elected leaders to mould the political system in line with their own preferences.

The disqualification by the Supreme Court of Prime Minister Nawaz Sharif on grounds of “violating Islamic injunctions” under Articles 62 and 63 of the Constitution — also introduced under a military dictatorship in 1985 — which requires a member of parliament to be “honest” and “morally upright” (ameen and sadiq), is no exception. Nor indeed is Sharif’s dismissal. No prime minister in Pakistan’s 70-year long history has completed their five-year tenure. For Sharif this ouster marks his third premature exit. Forced to resign by the military in 1993, he returned for a second term in 1997 before being overthrown by a military coup in 1999.

The specific (and shockingly narrow) legal grounds for Sharif’s latest dismissal lie in his failure to declare the sum of some 10,000 dirhams he was owed, but never received, from a Dubai-based company of which he was chairman, when filing his nomination papers during the 2013 general election. Sharif’s precise involvement in the more substantial allegations stemming from the leak of the so-called Panama Papers, which revealed the use of his family’s off-shore companies to launder funds worth millions of dollars to purchase luxury properties abroad, however, is still to be decided.

But in a sweeping indictment, the Court ordered Pakistan’s main corruption watch-dog, the National Accountability Bureau, to file criminal charges against Sharif and three of his children, including his daughter and heir-apparent, Maryam Nawaz, and bring them to trial within six months. If implemented it would deal a powerful though not necessarily mortal blow to the tradition of Pakistan’s dynastic politics. The nomination by Sharif of his brother, Shahbaz Sharif, to take over as Prime Minister, and for Shahbaz’s son, Hamza, to possibly replace his father as chief minister of the wealthy province of Punjab, suggests that Pakistan’s political dynasties still have some life left in them.

The Court’s verdict has polarised opinion in Pakistan. Opposition parties have hailed the judgement as a milestone in Pakistan’s struggle against corruption. Imran Khan, leader of the Pakistan Justice Party (PTI), who has campaigned relentlessly against Sharif for the last four years, has also vowed to continue his drive for greater political accountability.

He enjoys the support of vast swathes of Pakistan’s vocal and ever expanding middle classes, who believe that the Court’s judgement has set a welcome precedent by showing that Pakistan’s rulers are not above the law.

Supporters of Sharif’s party, the Pakistan Muslim League-Nawaz (PML), have criticised the ruling as a “witch-hunt”. Sharif himself has denied any wrong doing, and in an emotional address to party workers the day after the Court’s judgement declared that his “conscience is clear”. While Sharif’s ouster amid as yet unproven allegations of corruption would appear, on the face of it, to be a giant leap for accountability, it could spell a step back for democracy.

Given Pakistan’s long history of civilian governments being toppled – more often than not – by the country’s all-powerful military, there are fears that the issue of accountability, backed by vaguely worded constitutional clauses invoking ‘Islamic injunctions’, will now be used selectively by unelected state institutions to thwart the popular will.

Claims that justice is used selectively to target Pakistan’s political classes are not unfounded. No military leader, including most recently former president General Parvez Musharraf, has yet been held accountable for subverting the Constitution. Nor indeed has any high-ranking state official who is known to enjoy the patronage of the military, notably A. Q. Khan, master-mind of Pakistan’s atomic bomb, been called to account for allegedly profiting from the sale of Pakistan’s nuclear technology.

Although Pakistan’s judiciary has emerged in recent years as an independent force, it bears an unenviable record of endorsing military dictatorships in the past. This has led to worrying concerns that the judiciary could become the instrument of choice for Pakistan’s all-powerful military to stage ‘judicial coups’ against recalcitrant governments at a time when outright military takeovers are globally frowned on.

So far there has been no comment from Pakistan’s military about Sharif’s dismissal. However, speculation is rife about its role in securing Sharif’s ouster. Two of the six members of the Joint Investigation Team (JIT), which produced the evidence leading to Sharif’s down fall were senior military personnel attached to Military Intelligence (MI) and the Inter-Services Intelligence (ISI) though no reasons were given for their inclusion.

It is no secret that Sharif’s desire to normalize relations with India has long put him at logger-heads with the military. Reports last year (the so-called Dawn leaks) also pointed to a serious rift between the military high command and Sharif’s government over the military’s use of militant proxies in Kashmir and Afghanistan which some ministers warned was compounding Pakistan’s international isolation.

It has since emerged that the two military officers serving on the JIT that produced the evidence leading to Sharif’s downfall were the same as those who led an investigation earlier this year into the Dawn leaks.

There are good grounds to believe therefore that, intentionally or not, the Court’s ruling will significantly expand the space for Pakistan’s military and the pursuit of its not-always-benign interests.

Domestically, it is bound to precipitate the deterioration of Pakistan’s already brittle political institutions, especially its elected institutions. The enduring imbalance between these institutions and powerful unelected bodies, namely the military and the judiciary, is likely to deepen and make way for repeated interventions to interrupt the political process.

There is no doubt that any new government returned following elections in 2018 elections – if they go ahead – will be handicapped by the Court’s ruling. In a country known for its abuse of laws appealing to Islam, Pakistan can expect to hear more frequent references to constitutional clauses based on ‘Islamic injunctions’ to chastise democratically elected governments which are seen to be wayward.

The most immediate repercussions of Sharif’s dismissal abroad will be felt at the regional level. The military, which already exercises near total control over Pakistan’s regional policies vis-á-vis India and Afghanistan, is certain to strengthen its grip.

The faltering bilateral dialogue with India can be expected to wither while clashes may well escalate across the LoC in Kashmir. Any constructive role reserved for Pakistan in helping bring peace to Afghanistan, meanwhile, is likely to be firmly subordinated to the military’s vision of Pakistan’s national interests.

None of this bodes well for Pakistan. It is even less propitious for the resolution of Pakistan’s chronic crisis of identity stemming from its struggle to reconcile secular ideas of democracy with its complex attachment to laws informed by Islam.

The writer is an Associate Fellow of Chatham House and the author of 'Making Sense of Pakistan'

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