Herald Magazine Logo
President Mamnoon Hussain administers oath to Prime Minister Shahid Khaqan Abbasi at Aiwan-e-Sadar, Islamabad on August 1, 2017 | PID
President Mamnoon Hussain administers oath to Prime Minister Shahid Khaqan Abbasi at Aiwan-e-Sadar, Islamabad on August 1, 2017 | PID

The premature and forced departure of prime ministers is the norm in Pakistan. The recent Supreme Court decision to disqualify Nawaz Sharif, on the face of it, fits the pattern. There are, however, significant departures from the past this time round. Firstly, and perhaps most significantly, the Panama Papers leaks that showed Nawaz’s children owning offshore assets were an international development that cannot be blamed on a conspiracy hatched by any of the local power players.

Secondly, the Supreme Court has become the arbiter of political disputes on a scale hitherto unprecedented. The July 28 verdict marks the highest point in the trajectory the apex court has been pursuing after the restoration of Justice Iftikhar Muhammad Chaudhry in 2009. Thirdly, the military’s fingerprints are not ostensibly visible in Nawaz’s ouster — except that two army officers were members of the joint investigation team (JIT) that the court had set up to probe allegations of undeclared wealth against him.

The past is another country and in that country the explanation would have been simple: the army asked the Supreme Court to disqualify Nawaz and the court obliged. Tempting as it is, this time round this explanation will be reductionist as it ignores the institutional power dynamics underway for nearly a decade now.

Traditionally, the Supreme Court’s role in power struggles has been post facto — once a coup has taken place, the judges will validate it. Since 2009, the Supreme Court has incrementally captured institutional space and positioned itself as an active player in the political chessboard. It makes no secret of its concerns for its media image and the public’s support for it.

The Supreme Court does not aspire to a mass support but a ‘populist’ one — the support of the chattering, urban (and often Punjabi) middle classes, often the same classes which the senior judges come from. The constituents of these classes coincide with the principal constituency of the army and are disproportionately represented in the national conversation as commentators, analysts and anchorpersons. It is an alignment of interests between the judiciary and the military rather than a phone call from the General Headquarters to the Constitution Avenue that has led to Nawaz’s disqualification.

The Supreme Court’s sphere of influence expanded as both Nawaz and Imran Khan have bypassed the parliament and used the superior judiciary to settle political disputes over the last few years. It started in 2012 when, to browbeat the Pakistan Peoples Party (PPP) government, Nawaz donned a lawyer’s black coat and moved the Supreme Court over an allegedly treasonous memo written by our then ambassador in Washington, Husain Haqqani.

The allegations of election rigging by Imran Khan are a classic, and perhaps the most meaningful, example of a political issue going to the court for resolution. Instead of waiting for the court of public opinion to give its verdict on the allegations – through an election, of course – he took them to the Supreme Court looking for a definitive ‘yes’ or ‘no’ answer and had an egg on his face in the process. Nawaz won that round or so he thought but the real impact of the decision was manifesting itself somewhere else: the highest court in the land – acting as an election tribunal and dominating public imagination and prime time television – was setting the tone for a much grander role for itself in national politics. Nawaz’s dismissal is only one of the outcomes of that role, though it is the most significant one so far.

Nawaz Sharif and his Pakistan Muslim League-Nawaz (PMLN) face a unique challenge as they encounter an ascendant Supreme Court. Historically the party’s constituency has coincided with that of the army and the superior judiciary. Its traditional voter is a right-wing patriot who loves the men in robes and uniforms and who feels that those being held accountable for corruption – mostly belonging to the PPP – deserve the treatment they are receiving.

This equation first changed in October 1999 when Nawaz became an anti-establishment politician due to poverty of choice. It opened up the first schism in the PMLN-judiciary-military combine.

After coming back to Pakistan from exile in 2007, Nawaz thought he could mend fences at least with the judiciary if not with the army. The Supreme Court led by Justice Iftikhar Muhammad Chaudhry did give him the biggest judicial reprieve of his life by overturning his conviction in the plane hijacking case even though the statutory time limit to hear his appeal had long passed.

But Nawaz misread the post-2009 judiciary and thought that his personal links with some senior judges and their Punjabi origin would be helpful to him more than they have actually turned out to be. The Supreme Court’s attitude towards him is not personal but is based on whether or not a decision in his favour or against him would be popular among the chattering classes that support the superior judiciary.

The 5-0 judgment against Nawaz is a tribute to the legacy of Justice Iftikhar Muhammad Chaudhry under whom all judgments were unanimous. This was not because there was always a convergence of legal assessment among all the learned judges but due to their attempts to put up a united institutional front in a political atmosphere that often put their unity to test. Since 2009, the Supreme Court has learnt to close ranks to maintain internal solidarity in order to capture institutional space often at the expense of constitutional principles.

The legal reasoning of the judgment against Nawaz is controversial, narrow and unprecedented but its announcement was only a formality even before the hearings in the case had reached the final stage. The Sharif family’s defence was flimsy and often downright embarrassing.

He was caught with his hand stuck in the cookie jar and the statements about his family’s thriving steel business since Tipu Sultan’s times were not only unconvincing, but they also eroded sympathy for him among the middle class. The arrogance displayed by him and his associates during the hearings alienated all his potential allies inside the parliament. The media was polarised to the point that objective facts ceased to be. The court only needed a technicality and internal consensus to show him the door.

Documents collected by the JIT being brought to the Supreme Court on July 10, 2017 | Tanveer Shahzad, White Star
Documents collected by the JIT being brought to the Supreme Court on July 10, 2017 | Tanveer Shahzad, White Star

But to give the verdict a thick layer of credibility, the judges ensured that the hearings did not look anything like the summary proceedings conducted after the governments were sacked and the parliament dissolved back in the 1990s under the now-defunct Article 58-2 (b) of the Constitution. There have been elaborate hearings or at least that is what the public saw. It helped that the army silently approved.

The army’s differences with Nawaz are many, including those on foreign and domestic policies. But perhaps the most fundamental problem the army has with him is his mere presence in Islamabad. He is the veritable ‘comeback kid’, the only politician to return to power after being displaced by a military takeover.

When the army sent Iskandar Mirza, Ayub Khan and Zulfikar Ali Bhutto home, none of them could stage a comeback. Nawaz the survivor, thus, upsets the notion that the practical and psychological power of a coup lies in it being final. His ascent to the office of the prime minister and the subsequent house arrest of General (retd) Pervez Musharraf was a psychological setback for an institution that has the self-image of being the ultimate authority in the realm. In practical terms, a sacked politician’s ability to return to power diminishes the army’s capability to persuade future defectors required to topple other civilian governments — if and when required. With Nawaz’s ouster, that balance has been restored in the army’s favour — or at least, the process for the restoration has started.

The army and the Supreme Court have raised the stakes for themselves by trying to undermine Nawaz’s image as the most resilient politician of our times. A return of the House of Sharif in 2018 will weaken their credibility to deliver final blows. The supporters of the two institutions, who have smelled blood, will keep asking for more.

Unlike Yousaf Raza Gillani, the PPP prime minister sent packing by the Supreme Court in the summer of 2012 for contempt of court, Nawaz is not a leader of the PMLN but the leader of the ruling party. The Supreme Court has crossed a new threshold by sending home perhaps the most powerful civilian prime minister after Bhutto. And, for the moment, they have mostly received uncritical, thundering applause. This does not bode well for parliamentary supremacy.

The judgment in itself does not do much harm to the political system. Parliament remains intact and PMLN remains in power. There is hardly any impact being felt in the provinces except in Punjab where a change of guard will take place, not due to judicial reasons but political ones. This change, indeed, is a signal to the crowd of so-called electables surrounding Nawaz that his – and his family’s – grip on Punjab remains unshakeable.

The Supreme Court verdict may have dealt him a serious political blow but it is important for him, his family and his party to maintain the perception of his invincibility and permanence in the province.

At a broader level, this architecture built on a dynastic platform and strengthened by an elaborate network of patronage distribution makes the parliamentary system look more fragile than ever.

The Sharif model of politics – both in Lahore and Islamabad – has always displayed an arrogant contempt for parliamentary oversight and institutionalised party structure (in this, they are only surpassed by Imran Khan). Nomination of Shehbaz Sharif for prime minister makes sense when you consider that the PMLN is trying to keep itself entrenched in power but it makes the ruling party look so dynastic and out of touch with popular sentiments that even its supporters find it difficult to point out the public benefits of these moves. These will leave senior members of the party, to use a phrase coined by P G Wodehouse, “not very gruntled”.

The emergence of disgruntled elements within the PMLN, the perception of a rift with the military, a hostile Supreme Court and a National Accountability Bureau breathing down the neck of the Sharifs with multiple corruption cases may initiate defections from the PMLN (with a nudge and wink from the PTI).

The ruling party has a loyal voter base in central Punjab but once electables coming from other regions of the province start defecting in large numbers, it is likely to have a significant impact on voters’ perception as well. The electorate in Punjab generally does not vote for a losing horse — as we saw in the 2002 elections when the PMLN came third in the province both in terms of the votes it received and the constituencies it won. The ruling party is still standing, but it will be walking to the next election on egg shells.

But before the next election comes to pass, the PMLN has one last chance to address some historical wrongs that may improve its political stature. For instance, it can join hands with other parties to rid the Constitution of additions to articles 62 and 63 made during General Ziaul Haq’s military regime. It can also win back some public support by creating an independent mechanism for accountability, working under parliamentary supervision.

The indications are that this is not the plan. The plan, if there is any, is to hold on tightly to power via even a smaller coterie.

This was originally published in the Herald's August 2017 issue. To read more subscribe to the Herald in print.

The writer is a lawyer and a columnist.