Legal eye: The devil and the deep sea?

What should a pro-democracy, pro-accountability, non-partisan Pakistani be rooting for in this contest? Here is the paradox. On the supply side of praetorian interventions has been a civil-military imbalance and desire of praetorians to maintain favourable balance of power even if by subverting the constitution and overthrowing elected governments. On the demand side of praetorianism have been elected regimes that functioned in a despotic and dishonest manner and prevented the fruits of democracy from trickling down to the average citizen.

Are those worried about democracy amid the Panama circus imagining things? They might be. But such imagination is inspired by our history and a fear of its repetition. Democracy never really took off in Pakistan. The civ-mil imbalance grew from 1954 onward. From 1958 to 1969, we had the Ayub regime and then Yahya for a couple of years. From 1977 to 1988, we suffered Zia. Musharraf imposed himself on us from 1999 to 2008. In intervening periods, when we were transitioning to democracy, khaki control continued from behind the curtain.

Prior to each praetorian intervention we have had conversations about how no one wants khaki rule (including khakis) and how the world has changed, making direct military intervention impossible. No one really thought Zia would have the audacity or ability to overthrow Bhutto or hang him – till it happened. In 1999 the Sharif government had a two-thirds majority in parliament, produced by the fourth election in less than a decade. Many had believed that the days of martial law were behind us. But then Musharraf happened and lasted for a decade.

We have recently seen a dictator throw out an elected regime in Egypt. We have witnessed a failed coup in Turkey. Our region (from Afghanistan to the Middle East) is in turmoil. Any suggestion that military intervention in Pakistan is now impossible due to concerns about international acceptance or because the khaki footprint in controlling state affairs is shrinking isn’t rooted in reality. Coups have mostly been accompanied not by proclamations of dictatorship but by claims of offering another path to ‘true’ democracy.

The ‘democratic’ 90s saw the khakis pulling strings from behind the scenes. Through the Asghar Khan case we found how the IJI was cobbled together by the ISI, and discovered things we had feared but couldn’t talk about. Post-2008, we saw the khakis blow their lid over the Kerry-Lugar law (when they weren’t part of the deal). We saw Memogate and the PPP being taken to the cleaners over stuff that happened mostly in the 90s (Swiss cases etc). Post-2013 we have had Dharna I, Dharna II, Dawnleaks, and now Panama with its focus on what the Sharifs did in a distant past.

If corruption and abuse of power vexes us, why is implementation of the Asghar Khan case not our issue? If holding rulers to account is now a priority, why have we let Musharraf’s treason trial make a mockery of rule of law in Pakistan? Swiss cases and London flats are an issue as they should be. But why are Musharraf’s millions, how he made them, who his benefactors were and why, non-issues? Why is there no national narrative on the OBL disaster, Raymond Davis or #ThankYouRaheelSharif serving the Saudis?

How do mega-narratives get constructed and reinforced in Pakistan? We have grown up with the view that politicos are corrupt, incompetent and uncouth. The NRO Implementation case reinforced the view by bringing out the PPP’s skeletons from the 90s. The Panama leaks entrenched it further by putting under a microscope the Sharifs’ acquisition of London flats (another scandal from 90s). Imran Khan is the only unstained politico left standing. And he too is surrounded by dirty laundry in case larger national interest requires its washing in public.

The civ-mil cycle is familiar. A dictator becomes unpopular and a liability for everyone including the khakis and we see a transition back to democracy. While a civilian dispensation finds its feet, the khakis enjoy an absolute veto. Subsequently, they are treated as adjudicators settling political and institutional disputes – with considerable ability to make things happen from behind the curtain. With time, however, the control gets diluted and as the balance of power keeps shifting, the military has to make an institutional choice: let go of control or reaffirm it.

Have we come full cycle since 2008? If Nawaz Sharif is no good, has funny ideas about influencing our relationship with India, and has yet to settle scores for 1999 (though he keeps trying – for example, the Musharraf trial, Hamid Mir, Dawnleaks etc), would it not be in the national interest to ensure that there is a competitive playing field before Election 2018? If elected a fourth time, would NS not be insufferable? If you are the one institution that believes it holds Pakistan together, is the desire to retain your ability to steer the country in the right direction irrational?

Who can question the principle of giving effect to the law and holding a PM to account if he has stolen from his country? If we can’t hold our representatives to account, as they get fat through abuse of fiduciary authority delegated to them by the people of Pakistan, the demand for praetorians would kick in automatically. If all that the democratic process and its continuity do is allow kleptocrats to reign supreme, the case of continuity as a nutrient for democracy’s health dies away. But are we to disregard who is doing the accounting, how and to what end?

If an incumbent PM is disqualified from holding office after a fair trial in which he is found guilty of criminal conduct beyond reasonable doubt, the decision must be celebrated as strengthening rule of law and empowering the ordinary citizen. But if an elected PM is pushed out in a manner that raises questions about its fairness and transparency and has the effect of strengthening the hands of one elite faction at the expense of another, it will undermine the collective right of the people to self-governance, which lies at the heart of democracy.

Would it not have been splendid if in this process of accountability of an elected PM (on the basis of the efforts of the PTI, the main opposition party, through a process run by the Supreme Court) one could trace no khaki footprint? Given our constitutional history, civ-mil imbalance and continuing calls for controlled democracy etc, could this process not have been run without the ISI and MI? Couldn’t the JIT be constituted such that it attracted no controversy? Couldn’t it conduct itself in a manner that raised no concerns about it being predisposed?

At one level, the Panama case is about confirming if the highest elected officeholder has accumulated assets beyond his known means of income. In that context, the PM has been found wanting. His Qatari defence is lame. And the first family’s sense of entitlement manifest in the PML-N’s continuing harangue outside the JIT nauseating.

On a higher level, Panama is about our constitutional design: how checks and balances should maintain a state of equilibrium between pillars of our state – executive, legislature and judiciary; the test to be satisfied before a non-representative institution (ie the judiciary) ousts the head of the representative executive; minimum requirements of a fair trial that must always be met by the SC while exercising its 184(3) jurisdiction (notwithstanding burning emotions of the moment) before it penalises someone be it the PM or an ordinary Joe.

At a practical level, Panama is about consequences. Will its process and outcome strengthen or weaken rule of law and constitutionalism? Will it empower the ordinary citizen or make his vote irrelevant? Does it mark the beginning of an across-the-board accountability process of holy cows or will it be seen as the casualty of the weaker cow in an internecine fight between cows?

As the JIT finalises its report and the SC takes it up, they must remember that what they are doing here is setting a precedent. There can be no doubt that those sitting in judgment will also be judged, not just by contemporary public opinion but also by history.

Email: sattar@post.harvard.edu

The writer is a lawyer based in Islamabad.