The gloves come off

Legal eye

The PML-N has bared its fangs. Nehal Hashmi stated without mincing words what many Noonies have said tongue-in-cheek. He warned those in service of the state (ie those due to retire at some point) – who are seeking to hold Nawaz Sharif to account and making his life difficult – of dire consequences and of making Pakistan unliveable for them.

The PML-N’s fulmination is triggered by the JIT not being overawed while grilling the PM’s relatives. Public officeholders are, after all, expected to behave as the Emperor’s servants and not exhibit the audacity to interrogate him or his kin.

We have repeatedly heard the bogus argument that legal accountability must make way for political accountability in dealing with elected representatives. We heard the PPP make this argument when Yousaf Raza Gilani was put in the dock for letting his personal loyalty to Asif Zardari trump his duty to comply with court orders. We are now being told by Noonies that the skies might cave in if the JIT asks the PM’s kin tough questions about how they made their billions, and if based on such report the Supreme Court sets the ball for the PM’s disqualification rolling.

“The more things change, the more they stay the same”, Jean Baptiste Karr had written. Have the Sharifs come full circle after a coup, almost a decade of exile (and self-reflection?) and a decade of being back in Pakistan and being re-intoxicated by power, pelf and sycophancy? Remember the late 1990s, the PML-N’s boasts of its ‘heavy mandate’ and how insufferable it had become?

Before finding trouble with Musharraf, NS had locked horns with CJP Justice Sajjad Ali Shah. There are many versions of that story. One starts with differences over the elevation of two high court judges to the SC. They had heard cases against the Sharifs during the PPP’s second term and had perhaps not been very accommodating. NS didn’t want them in the SC and Justice Shah did. Ultimately, Justice Shah prevailed. But the fight continued. At its centre was Sharif’s power, and his ability to entrench it.

NS promulgated the 14th Amendment that deleted the infamous Article 58(2)(b) (used to fire governments back then). Justice Shah suspended the amendment. NS spoke against CJP Shah, which led to Shah issuing a contempt notice to the PM. The contempt hearings were tense and the bench headed by CJP Shah was visibly hostile. NS appeared in court, but that didn’t make the contempt proceedings go away. On a subsequent hearing of the matter, the PML-N physically attacked the SC to intimidate the judges.

As Justice Shah was taking on the PM, he had managed to offend a majority of his fellow judges. Ultimately, there was a coup within the SC with a majority deciding to suspend their own chief. (The PPP made Justice Shah the CJP bypassing senior judges and so there was a legal argument against his appointment). When a majority of the judges turned on Shah, he was removed as CJP and cut down to size. President Leghari also had to go. The PM won. And the PML-N got away scot-free for its premeditated attack on the SC.

Senator Nehal Hashmi was too explicit in issuing threats and has been punished for being stupid with his choice of words. But a range of PML-N leaders (including Saad Rafiq and Rana Sanaullah) echo the same message implicitly: that the SC and the JIT are being unfair to NS, the entire Panama enterprise is a conspiracy to snatch power from the Sharifs, and that the PML-N won’t take penal consequences flowing toward their leader lying down. What is this public messaging for if not to influence the outcome of a legal matter whose determination is pending before the SC?

A legitimate criticism of rule of law is that law is an instrument of power used by elites to sustain and entrench themselves in power. Even when the constitution promises equality before law, the promise doesn’t translate into equal treatment of individuals by components of the criminal justice system – ie police, courts etc. The NRO case during the PPP’s term and now the Panama proceedings are a breath of fresh air because they are exceptions to the rule that ruling elites are not to be held to account.

Our governance system is broken because our public officeholders don’t think of themselves as trustees exercising state authority on behalf of and for the benefit of ordinary people. They think of the country as their personal estate whose largess they can dispense at whim. Our institutions remain weak, as power elites controlling them don’t wish for them to become larger than individuals or able enough to curtail the ability of elites to distribute patronage arbitrarily.

In this backdrop, the Panama case was about two things: whether NS owns hidden assets that he cannot account for and is thus liable to be disqualified; and what the SC can do while exercising its Article 184(3) jurisdiction. Many opposed to the PM’s immediate disqualification in the matter weren’t necessarily mesmerised by the Sharif money trail fable. They were arguing that throwing out a PM without due process would not be in accordance with law. This is what a majority on the Panama bench also held.

The counter-apprehension (also noted in the Panama judicial opinions) was that our ‘system’ isn’t geared toward holding a sitting PM to account. If the matter were to be decided by the ordinary criminal justice system, it would bend over backward to acquit the PM. It was thus that the judges, who didn’t disqualify the PM immediately, took the Hawala route and ordered an investigation under the SC’s supervision. This was essential to ensure that the PM’s accountability neither comes to be seen as a witch-hunt nor an exercise in bailing out the PM.

The alleged VOIP calls by the Registrar SC to heads of the SECP and State Bank have now raised a question mark over the JIT’s composition. The court order in the Panama case said that the JIT shall include “a nominee” each from the State Bank and SECP, to be nominated by their respective heads, and such names to be placed before the bench in chambers for “nomination and approval”. If the Registrar SC asked the SECP and State Bank, as alleged, to nominate pre-identified individuals, such request wasn’t in accordance with the SC order.

Was the Registrar SC instructed by the Panama bench to ensure nomination of the identified persons by the SECP and State Bank? Would the SC issue instructions contrary to its order? If the SC had specific individuals in mind, it could simply appoint them as JIT members instead of ordering the SECP and State Bank to make nominations. And if the Panama bench didn’t issue such instructions and the Panama implementation bench wasn’t constituted till early May, on whose behalf was the Registrar SC making calls on April 27 as recorded in the SECP’s letter of April 28?

Was the SECP’s letter documenting the registrar’s request placed before the Implementation Bench when it convened on May 4 and rejected individuals nominated by the SECP and State Bank? Was it aware of the registrar’s request when it later handpicked the same individuals for JIT membership whose nominations were requested by the SC registrar? While the PML-N has a vested interest in impugning the JIT’s integrity, the SC and the people of Pakistan have a vested interest in ensuring that the process through which our highest court holds a sitting PM to account remains beyond reproach.

The chief justice did the right thing in taking cognizance of Hashmi’s harangue. It is to prevent obstruction of justice and seek implementation of court orders that the contempt power exists. But it is motivated by the need to affirm public faith in the integrity and neutrality of the judicial process. This phone call matter has handed a smoking gun to the PML-N, which it will use without refrain to impeach the JIT’s integrity and its findings should they go against NS. The SC must address the issue. As they say, justice is not only to be done but must also be seen to be done.

The writer is a lawyer based in Islamabad.

Email: sattar@post.harvard.edu