Legal eye: The slippery slope

We seem to be on the slippery slope that leads down to praetorian rule. Nawaz Sharif is down but not out. It is hard to deny that he is still popular with his support base. The PTI is the PML-N’s main competitor. It appears that the PTI’s popularity hasn’t grown much beyond the highly committed support base it developed going into Election 2013. The PML-N is grievously hurt, but it is fighting back. If the NA-120 by-election results are any indicator, the PTI might not be able to win Election 2018 unless the PML-N bleeds further.

NS is essentially saying that a partial judiciary has thrown him out without cause on the behest of the establishment. Overall khaki footprint has expanded steadily (after initial contraction post-Musharraf) under the last two civilian governments. In his present agitated state, NS is calling for a contraction of the khaki role, seeking control of the polity for elected representatives, establishing civilian control over the military and changing the present reality of the khakis being the real power-wielders from behind the curtain.

No one voluntarily gives up power. In our case, the military is the country’s most powerful institution, which has meticulously nurtured its soft power with no hints that it plans to go back to the barracks in the traditional military role. NS seems to think that the establishment crossed a red line when he was thrown out. In lashing out against the khakis and reviving the democracy vs dictatorship debate, he is crossing what khakis might think is a red line.     With the battle lines drawn, something will have to give.

In a contest between legal authority (backed by moral authority) and brute force, legal authority can win in a civilised polity. In our case, the Supreme Court has ousted NS in exercise of its legal authority. (Whether such exercise seems unfair and can hurt the court is another matter). The court’s reasoning might not match the cause. But most understand that NS has been ousted for his family’s ownership of assets that he can’t explain with a believable story. Hence his ouster has robbed him of moral authority in view of neutral bystanders.

Devoid of legal and moral authority and up against force, NS would have no chance. The picture gets complicated for NS has been indicted on the basis of an investigation conducted by a JIT       influenced by the ISI and MI and he has been disqualified through a process that doesn’t seem fair. It is now clear that what was sold as the beginning of an across-the-board accountability process is not to be. This cultivates a sense that the London flats might not have been the cause but the means in a get-Nawaz operation.

The pro-democracy neutral bystander is sitting on a fence. On the one hand is a popularly elected leader who has been in and out of public office for decades, but can’t explain his assets without employing a fairy tale. On the other is our history of selective employment of the slogan of accountability by non-representative institutions to leash and tame politicos.      The bigger the khaki footprint in the Nawaz Sharif affair, the less it becomes about accountability and the more about democracy.

A problem emerges if: (i) despite the disqualification and chiding commentary by the SC (with the PTI projecting the NA-120 electoral contest as well as the trial of NS as a duel between Nawaz and the SC), NS is able to retain the sympathy and support of the PML-N support base, and (ii) there emerges a sense that despite the bleeding, NS’s support might be sufficient for the PML-N to defeat the PTI and emerge as the largest party in Election 2018. The possibility of five more years of PML-N rule remote controlled by an uninhibited Nawaz is what a gridlock looks like.

So what will the khakis do?  Rangergate was a trailer. It was a manifestation of soft and hard khaki power. The constitution unequivocally states that the federal government shall have the command and control of the armed forces. Let’s forget that too. The Rangers as a paramilitary law-enforcement force reports directly to the interior ministry. What it did by assuming control of the judicial complex and disobeying its chain of command was simply illegal. A unit behaving such within our highly disciplined army is unfathomable.

But protagonists of expansive khaki role welcome the exhibition of contempt for civilian authority with bravado. Almost as a Pavlovian response, supporters and apologists of praetorianism came out defending the Rangers’ insubordination with all kinds of bizarre arguments,         ranging from baseless claims about a competent authority having ordered the force to occupy the judicial complex to the rising price of tomatoes! Instantly on show was khaki soft power across electronic and social media defending the indefensible.

The PTI and the PML-N are daggers drawn today – the way the PML-N and the PPP were in the 90s. The politics of the 90s proved that the second choice of each mainstream party was the military; the first being themselves. The PTI through the dharna (and continuing sycophancy in relation to the khakis since) has established that it will do whatever it takes to grasp power, even if it means being propped up on crutches. With the PTI egging the khakis on and the PML-N in its state of defiance, we are back in the 90s.

Each contestant, for its own reasons, would rather have the military flex its muscle than the other winning: the PTI because IK mistakenly believes the khakis may assert power for his benefit and help him become PM; and the PML-N because Nawaz’s best bet to regain the throne is the debate being shaped as democracy vs dictatorship. If declarations of doom by retired khakis     (and civvies who function as extensions of khakis)          are a sign, the khakis too have picked a side and it isn’t Nawaz’s.

Other signs bode ill for the health and continuity of democracy and rule of law in Pakistan too. Under Raheel Sharif, notwithstanding his vanity/need for public attention and behind the scene happenings, the military largely remained politically correct. Amongst thousands of tweets building the chief’s persona,         there was none directly challenging civilian authority such as the one on Dawn leaks. Furthermore, use of religion was never brought into play. If anything, bigotry took a beating under the last chief.

That changed this year with the abduction of bloggers and their persecution     by sections of the media on allegations of blasphemy.     Who    is backing this new trend of using blasphemy charges as a preferred tool of coercion against critics? We have also seen the emergence of the Milli Muslim League, reportedly Hafiz Saeed’s party, with suggestions in the media that politically mainstreaming militants is a great (brand new) idea. The use of religion for legitimacy (as in Zia’s time or with the MMA’s emergence under Musharraf) brings back memories of dictators.

The issue of forced disappearances hasn’t been resolved despite military courts and expansive legal powers vested in military agencies. The latest is the abduction of a Pak-Turk teacher’s family. CTD Punjab had first bullied the management of Pak-Turk schools and the Turkish staff – apparently on the instructions of the Erdogan regime to the Sharifs. But our courts stepped in. The schools couldn’t be taken over nor the Turkish staff extradited. Now a Turkish family has been picked up. Who has ordered this and why?

There is no effective external restraint against praetorianism. We have seen the US support and strengthen military rule in Egypt when it serves American interests. Our military for all its strengths (and Pakistan’s dire need for a strong force in our geo-strategic environment) has little faith in civilian authority. In the public eye, it positions itself as a counterweight to elected governments. So long as the khakis and civvies are competitors vying for space and power, the civ-mil conflict can be managed but not eliminated.

In this backdrop, with Nawaz in his defiant mode, we have all the timber we need for a fire. All we need is a trigger. Or maybe not even that if personal ambition       or delusions of grandeur – a la Musharraf – make an appearance.  

The writer is a lawyer based in Islamabad.

Email: sattar@post.harvard.edu