Legal eye: A game of chess?

Our politics has more moves than a game of chess. Political parties, khakis, Supreme Court, Election Commission and voters are all part of the play. This makes management of outcomes challenging if not impossible. With Nawaz Sharif’s removal, and the focus shifting to new distribution of power in 2018, the PML-N government has entered an early lame duck phase. With all the deal making, conspiracies and gossip, this is likely to be one long year heavy on politicking and rhetoric, devoid of policy.

The first play is that for a new opposition leader. At stake are two appointments key for distribution of power in 2018: chairman of NAB and the interim prime minister. Notwithstanding the SC’s supervision of the Sharif accountability trial, whether or not the new NAB chairman brings vigour to the task of prosecuting the Sharifs in references already filed and those being considered could have an impact on whether the taint of corruption will be reinforced or diluted going into Election 2018.

According to Section 6 of the National Accountability Ordinance, the NAB chairman is to be appointed by the president in consultation with the PM and leader of the opposition. In the event that there is no agreement between the two – as is likely if the PTI manages to secure the position of leader of opposition – the issue of the legality of the appointment of the NAB chief will wind up in court and also provide fresh impetus to the PTI’s broader message that the accountability system is being held hostage by the conflicted Sharifs.

Even more critical is the appointment of the interim PM prior to Election 2018. Under the constitution, the PM and the leader of opposition are to agree on who will serve as the interim PM. If they fail to agree on a name each is to send two names to a committee to be constituted by the NA speaker “comprising eight members of the outgoing National Assembly, or the Senate, or both, having equal representation from the treasury and the opposition, to be nominated by the prime minister and the leader of the opposition respectively.”

In case of failure by the committee to agree on a name, the proposed names end up before the Election Commission, which then nominates an interim PM from amongst the four names initially proposed by the PM and leader of opposition (as had happened in 2014). Like in case of the appointment of the NAB chief, opposition parties other than that of the leader of opposition have no say in the matter. The leader of opposition can’t pick the interim PM, but can ensure that the outgoing government doesn’t get to pick one either.

If the PTI fears that Sharif and Zardari will strike a deal prior to Election 2018 (with the PPP hardly being in the run in Punjab, the PML-N without a stake in Sindh, and both apprehensive of the khakis and the courts as well as the accountability process), it would naturally wish to oust the current opposition leader. Going into the next general election as the main opposition party will further bolster the PTI’s image as the main challenger to the PML-N and encourage fence sitters and PPP electables from Punjab to leap over from old Pakistan to ‘Naya’ Pakistan.

From a real-politick perspective, it can’t be in the military’s institutional interest to wish for a strong civilian government that begins pushing its own ideas in the realm of national security and foreign policy, which are seen as falling exclusively within khaki domain, or get ambitious enough to try and fix the civ-mil imbalance. Hence the grapevine suggestion that the establishment is interested in manufacturing a hung parliament in 2018.

NS has been attacked and grievously wounded. He could either walk into the sunset or fight back. He has elected to fight back. This has put PML-N electables in a dilemma. Their psychological makeup isn’t anti-establishment and it is late in the day for them to emerge as born-again revolutionaries. On the one hand is their instinct to side with the establishment and opt for the easier route to power and on the other is the stark reality that the popular vote belongs to NS. Without him the prospect of defeating Naya Pakistan electables in Punjab would be remote.

The GT Road campaign, opinion polls and the NA 120 by-election all suggest that NS might be down but not out. Panama has waned his moral capital and the PML-N’s political support, but hasn’t really swelled the PTI’s support. The demise of the PPP in Punjab, the switch-over of PPP electables to the PTI, the deflation of support for the PML-N and the larger Punjabi sense that the establishment doesn’t throw politicos out to bring them right back will bring into play a lot more constituencies in Punjab. But will it give the PTI a clear path to power?

If things flow as predicted, the PML-N might lose a few dozen seats in Punjab, the PTI might gain a couple of dozen and ultimately the PML-N, PPP and PTI could emerge with significant representation within parliament – but none possessing the strength to form government on its own. This would suit the establishment. With no clear winner, politicos would remain consumed by politicking and a fight for survival for the next five years leaving policy matters in the able hands of the establishment.

But public sentiment is fickle and in politics not everything goes according to plan. What if, with the accountability trial and a misstep here and a misstep there, somehow there grows the sense that NS is being victimised? What if the rumours of a division within the Sharif clan are exaggerated or after the Hudaibiya reference being brought to life and renewed focus on Model Town inquiry report, they come to the conclusion that if there is a plan it isn’t to decimate only one brother?

What if there grows the possibility of a wounded NS regaining initiative and managing a majority in parliament? Or, alternatively, Imran Khan’s magic works and it looks like his party might sweep Punjab and form a strong government on its own?

There will still be some moves to be made. No matter how people vote, it will ultimately be for the judiciary to decide whether NS should be allowed to re-enter public office. With his legal fate sealed, who knows how long the expedient PML-N candidates and voters will stick around. And then disqualification proceedings are underway against Imran Khan too. What happens if both NS and IK stand disqualified and Election 2018 becomes a free for all – a non-party election of sorts?

If the outcome of Election 2018 becomes too uncertain, can the term of the interim government (nominated by an interim PM chosen by the Election Commission) be extended? The constitution doesn’t contemplate or allow that. But there is Article 254, which states: “When any act or thing is required by the constitution to be done within a particular period and it is not done within that period, the doing of the act or thing shall not be invalid or otherwise ineffective by reason only that it was not done within that period”.

In a country with weak democratic ethos and traditions and a bitter history of overbearing non-representative institutions keeping representative institutions in check, in disregard of the letter and spirit of the constitution, prophesies and gossip about conspiratorial plans are a dime a dozen. Notwithstanding our praetorian past with ambitious generals molesting the constitution with the aid and abetment of judges, have we turned a page?

One hopes that we might have a battle-hardened army that believes in minding its own professional business and seeks to abide by the letter and spirit of the constitution which states in Article 243 that, “the federal government shall have control and command of the armed forces.” And that the days of judicial expediency are behind us and court decisions are motivated by nothing other than the resolve to make rule of law supreme.

Have these hopes matured into reality? Events leading up to Election 2018 will tell.

The writer is a lawyer based in Islamabad.

Email: sattar@post.harvard.edu