Pakistan’s Court Sets a Dangerous Precedent

A supporter of Pakistan’s Prime Minister Nawaz Sharif passes out in Lahore, Pakistan, after the Supreme Court’s decision to disqualify Sharif on Friday. Credit Mohsin Raza/Reuters

Pakistan’s Supreme Court disqualified Prime Minister Nawaz Sharif on Friday from holding public office for life in a corruption inquiry linked to the Panama Papers, which had named three of his children as owners of offshore companies suspected of laundering money. The court also ordered the National Accountability Bureau, the country’s top anticorruption agency, to file corruption cases against Mr. Sharif and his family members based on the evidence collected by the court appointed Joint Investigation Team (J.I.T.).

The verdict came as no surprise. Even though Mr. Sharif was not named in the Panama leaks, and there is no evidence that he abused public office for private gain, the judges disqualified him for hiding assets, and therefore, not being “honest,” an insidious constitutional requirement for being a member of Parliament. They had already made their intentions clear by turning the inquiry into a zealous inquisition into his moral character, with the head of the five member bench disparagingly comparing the Sharif family to the mafia in “The Godfather” by Mario Puzo.

Pakistan’s superior judiciary — made up of the Supreme Court and five High Courts — has increasingly asserted its independence and power in recent years. But it has an abysmally poor record of defending democracy against authoritarian interventions. While there have been a handful of dissenting judges, the Supreme Court has legalized each one of Pakistan’s three successful military coups in 1958, 1977 and 1999 under the “doctrine of necessity.”

This judicial capitulation stems from legal precedents used to legitimize executive actions in the formative decade of Pakistan’s existence, the severe limits placed on judicial autonomy by prolonged military rule in subsequent decades and the judges’ strategic compromises for maintaining a modicum of institutional autonomy.

The empowered judges have become media-courting populists and have typically joined forces with the military by using allegations of corruption against disobedient prime ministers. In June 2012, the Supreme Court, led by Iftikhar Chaudhry, then the chief justice, convicted and disqualified Prime Minister Yousaf Raza Gilani of the Pakistan People’s Party for contempt after he refused to comply with a court order to reopen a dormant corruption inquiry against President Asif Ali Zardari.
Civil-military tensions had intensified after the killing of Osama bin Laden in May 2011 and Mr. Gilani was put on the chopping block after he openly denounced the military for being “a state within a state,” and for allowing Mr. bin Laden to hide in Pakistan for six years.

The judiciary’s recent assertion of power was born out of the conflict between Gen. Pervez Musharraf and Chief Justice Iftikhar Chaudhry in March 2007 over judicial investigations into the military’s illegal detention of terror suspects. General Musharraf fired Justice Chaudhry, which incited countrywide protests by lawyers against the military ruler.

Justice Chaudhry was reinstated but fired again, along with 60 other judges, in another contest with the general. It triggered a broader protest movement of lawyers, opposition parties, journalists and rights activists, which hastened the end of General Musharraf’s rule.

The Pakistan Peoples Party led by Mr. Gilani formed a new civilian government in February 2008. Mr. Gilani was reluctant to restore Justice Chaudhry and other judges fired by General Musharraf because his party feared Justice Chaudhry might restart corruption investigations against Mr. Zardari. Protests by the opposition and an ultimatum from Gen. Ashfaq Parvez Kayani, then head of the Army, forced him to reinstate Justice Chaudhry and other justices.

Justice Chaudhry mended fences with the military and promptly returned General Kayani’s favor by heeding his demand that the Supreme Court investigate allegations by a Pakistani-American businessman that Husain Haqqani, then Pakistan’s ambassador to the United States, had written a memo seeking American help in averting a military coup. Justice Chaudhry’s court upheld the military’s view that the memo was authentic and accused Mr. Haqqani of disloyalty to Pakistan.

Neither Justice Chaudhry nor any other judge prosecuted a single military official for human rights violations. When a senior intelligence officer was charged with kidnapping a civilian, the court restrained the police from executing arrest warrants out of the “respect of an institution.”

Yet the judges have exhibited disdain for elected prime ministers. The Panama hearings have appeared arbitrary and unfair from the start. The five-member bench returned a split decision in April with three judges calling for an investigation and two judges calling for Mr. Sharif’s outright disqualification. The investigation has been marred by reports that the judges cherry-picked members of the Joint Investigation Team, including one with known ties to Pakistan Tehreek-e-Insaf, the party of Mr. Sharif’s bitter rival Imran Khan.

Most significantly, the judges also included two officials from the military intelligence and Inter-Services Intelligence in the probe team investigating the wealth of the Sharifs. The craft of the Pakistani military spies lies not in legal or financial matters but in blackmailing politicians and destabilizing elected governments. The judges also ignored the Sharif family’s complaints of witness harassment and illegal wiretapping.

Pakistan’s politicians are not paragons of probity, but corruption is not the main reason for Mr. Sharif’s predicament. He has been ousted from the prime minister’s position twice before — in 1993 by presidential decree, in 1999 by General Musharraf’s coup — primarily for asserting civilian supremacy over the military and seeking peace with India.

While the Panama leaks were fortuitous, Mr. Sharif’s crime seems to be the same this time around: crossing the military by pursuing conciliatory policies toward India as well as Afghanistan and by reportedly demanding that Inter-Services Intelligence end its use of militant groups as tools of foreign policy. With coups globally out of fashion, the generals could not have been happier to topple Mr. Sharif without rolling the tanks.

The judges have clearly undermined the perception of justice by deposing Mr. Sharif without due process or trial to prove his innocence. Pakistan’s next national elections, scheduled for 2018, could have resulted in a historic second democratic turnover of power through elections.

Even though Mr. Sharif’s party will nominate another leader as interim prime minister to serve out the full five-year term, Mr. Sharif’s ouster will mar the country’s democratic transition. The court has set a dangerous judicial precedent that can easily be used to unseat elected leaders in the future.

Aqil Shah, the author of The Army and Democracy: Military Politics in Pakistan, is Wick Cary assistant professor of South Asian politics at the University of Oklahoma.

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