Constitutional order at war with itself

It seems we have now entered a critical phase of a constitutional order at war with itself. Even if the heavens were to fall, the judiciary is continuing to grapple with a reluctant executive by inventing its own inquisitorial arm to prosecute the ruling family. Ironically, everybody is on trial, and who manages to emerge unscathed is anybody’s guess.

It is the republic that is on trial amid a sort of constitutional warfare among its various components. Limits are being stretched to a point from where starts the erosion of what needs to be observed and preserved – the due process of law. Indeed, rule of law should have ideally remained the supreme consideration for both the adjudicators and those being adjudicated. If legal norms are not adhered to then the mightiest stands to gain at the cost of these civilians at war, be they judges, politicians or the media.

Given the failure of relevant institutions to unearth the corruption of the big fish across a whole ocean of corruption, the supreme adjudicator is trying to unearth matters of enigmatic money trails, going way back into the past, said to be behind the phenomenal rise of the House of Sharif. If the adjudicator has the exclusive advantage of reading leaves of constitutional imperatives in a way that suits its purpose, the executive too has the tools to defend its privileges or not to fulfil its obligations. In this tug of war, every institution – except for the iron-structure – stands divided. The judgment was divided. So is the executive, the media and the opinion about the character of the judicial investigators (of the JIT),      and the investigated. From the very selective selection of its members, the JIT was bound to run into contradiction with institutions, with the honourable exception of the ISI and the MI.

A        kind of civil tussle is clearly  discernible in the ongoing allegations and counter-allegations surrounding the operations of the Joint Investigation Team, which has somehow assumed the role of a supra-executive arm of the implementation bench of the Panama case. If the Intelligence Bureau (IB) is revealed to be    aiding its civilian boss, the JIT is privileged to have the services of far more effective agencies – one of which even managed to get away with the confessed photo leak, with no one daring to name names at the unfortunate cost of transparency. Here the IB can be credited for being transparent in admitting the officially sanctioned dirty business of the state compared to others who are beyond the pale of the law.    However, in an equal balance sheet of breaches by the respective parties, the judicial arm of inquisitors was privileged to make mother organisations answerable to the court of law.

Although the Sharifs have the painful consolation of explaining some of their unexplained businesses, they have already been morally undermined in the vicious atmosphere of paranoia and blame game that dominates our polity. It’s like demonising Asif Ali Zardari for being ‘Mr Ten Percent’; the Sharifs are being hounded these days by their detractors as ‘big thieves’, regardless of the merit of the case. The lack of consistent proof has pushed both the investigators and the alleged culprits into a blind alley, and they find the escape route by conveniently shifting the onus of proof on to each other. This leaves both sides relatively wanting and empty-handed in their respective cases.

So far, there is no straight case against Prime Minister Nawaz Sharif (who is currently on pilgrimage in the Holy Land). Even if his sons are implicated in money-laundering, they have the privilege of being non-resident Pakistanis. Whether the Qatari prince’s letter provides the money trail or not, that would matter to Hassan and Hussain Sharif, not Nawaz Sharif who has taken the plea of having separated himself from the family business since 1984.

But the investigators and adjudicators are not impressed with such an innocent defence. It is a daunting task to prove something that remains in darkness. Since the objective of the investigation seems to be to nab the real culprit, the whole exercise will end up in nothing if Nawaz Sharif escapes accountability. Whatever the plausibility of making a case, the prosecution of a plausible or implausible case will raise a very pertinent question about the trial itself. The implementing bench will be extending its scope at the cost of due process if it itself sits on trial or passes a moral stricture, despite being an appellate court. And if the case is sent for trial to the proper judicial forum, it will take the whole controversy back to square one in an election year.

More than the judicial trial and criminal investigation, the political trial is going to be very consequential. The immediate and mid-term political scenario is going to be overwhelmingly determined by the Panama case. Even if there is no conclusive judgment in the case, the Panama issue will eclipse all other issues and Nawaz Sharif’s political and media trial will continue to haunt his prospects in the next elections. He is, however, likely to politically survive in the absence of a clear judicial verdict against him.

A clear verdict against him seems to be not possible before the elections without blatantly scuttling due process. But it is still not beyond the realm of possibility, given the convention set by the Supreme Court under ex-CJ Iftikhar Chaudhry who sent a prime minister packing by convicting him for a few seconds. If the court finds a prima facie case of money-laundering or if it revisits the piety clause – Article 62 – of a candidate for the seat of the National Assembly, it will create a governmental crisis and could lead to a        moral breakdown      of the PML-N.

Paradoxically, the lingering on of the Panama case suits both the political adversaries and the powerful establishment. Although it weakens Nawaz Sharif, he can still use the benefit of doubt to his advantage to some extent. But it suits Imran Khan more since he has nothing to lose and much to gain. The whole politics is now centred on how to marginalise PM Nawaz Sharif by any means since he is still quite invincible in an electoral contest. His loss is the gain of his major adversaries – the PTI and the PPP.

But, let’s not forget Imran Khan and the PTI’s cases pending before the Supreme Court and the Election Commission of Pakistan. If both Nawaz Sharif and Imran Khan suffer, the dark horse that emerges won’t be Bilawal Bhutto whose political launch has been scuttled by his father. Regardless of the mock show of the Panama case, democracy will suffer and corruption will go on at an ever larger scale, along with the neglect of the people and their issues. The principal consequence will be further marginalisation of political forces and the degradation of political culture. Out of this civilian warfare, no one will emerge unscathed.

The writer is a senior journalist. Email: imtiaz.safma@gmail.com

Twitter: @ImtiazAlamSAFMA