Judicial coup in Pakistan: Letter of the law, not its spirit, is at work
The Pakistan Supreme Court’s ruling disqualifying thrice-elected Prime Minister Nawaz Sharif has been described by experts as a “judicial coup”, a major blow to efforts to strengthen the country’s fragile democracy.
Much of the world community’s efforts to strengthen democracy in Pakistan have focussed on the powerful military and political parties. But it’s time to take a closer look at the outsize reach of the activist judiciary, which has the dubious distinction of endorsing virtually every military takeover.
This is not the first time a premier has been ousted by the court. In 2012, Prime Minister Yousaf Raza Gilani was convicted of contempt by the top court and sentenced to be detained for the duration of the hearing. Days later, he was disqualified.
In the case of both Gilani and Sharif, the court used ambiguously worded provisions introduced in the constitution by military dictator Zia-ul-Haq that require all politicians to be sadiq and ameen (truthful and trustworthy).
Sharif’s legal problems began in 2016, when the Panama Papers leaks revealed his three children purportedly owned offshore assets worth millions of dollars. And yet, he was removed not over these revelations but a court-appointed investigative team’s conclusion that he had not declared in his 2013 nomination papers the salary he was owed by his son’s UAE-based firm.
Experts were quick to point out the political nature of the verdict by the judiciary, many of whose top members are populists with a propensity to cite the Islamic foundation of Pakistan’s laws and constitutional provisions.
Experts also noted the lack of due process in Sharif’s case, who was disqualified without a trial even though the court ordered a separate trial into the charges based on the Panama Papers.
“Historically, Pakistan’s superior judiciary has always aligned with the powerful military establishment. It has given legitimacy to military regimes. The supreme court sentenced a prime minister deposed by military to death in 1979,” Raza Rumi, editor of Pakistan’s Daily Times and a political analyst, told Hindustan Times. He was referring to hanging of Zulfikar Ali Bhutto.
While another military takeover in Pakistan is highly unlikely, the generals prefer to meddle in politics through other pliant institutions. The judiciary is yet to offer convincing proof it can stand up to the pressure from the general headquarters in Rawalpindi.
“This time the judiciary’s resolve may have been strengthened due to silent support from the military. Nawaz Sharif has had a strained relationship with the military during the past four years. Sharif and the military clashed publicly over policy and political matters,” Rumi said.
“On the face of it, disqualification was an instance of an over-reach. But opinion is divided if the military was involved.”
The joint investigation team set up on the court’s order to probe Sharif and family included two officials of the military intelligence and Inter-Services Intelligence – hardly the organisations that come to mind for investigating money laundering and financial crimes.
Musharraf is facing a raft of cases involving serious charges, including negligence that caused the assassination of former premier Benazir Bhutto.
The cases against him dragged on for years before he was allowed to leave Pakistan for medical reasons and he is unlikely to return to face the charges.
At the same time, Pakistan’s judicial system, like those in most South Asian countries, has failed abysmally in delivering speedy justice to ordinary citizens. Almost two million cases are pending in Pakistan’s courts and even special anti-terrorism courts have had few successes in convicting militants and terrorists.
In the few instances that courts have convicted someone in a high-profile case, things have not gone well for the judges.
The anti-terrorism court judge who convicted Mumtaz Qadri, the policeman who assassinated Punjab governor Salmaan Taseer in 2011, was forced to flee Pakistan after getting death threats.
Like many other Pakistani politicians, Sharif and his family have struggled with corruption allegations. But had Sharif lasted till the elections due next year, he would have been the first Pakistani premier to complete a full term.
As long as Pakistan’s judiciary appears to be more concerned about the letter of the law, and not its spirit, judicial meddling of the sort that cut short Sharif’s term cannot be ruled out.