In the face of an assertive judiciary
The PML-N’s (now ex) senator Nehal Hashmi is the first party stalwart to be convicted by the apex court under the contempt of court law. Party firebrands Tallal Chaudry and Daniyal Aziz have also been served notices.
Ever since the Supreme Court took up the Panama case against Nawaz Sharif and his family the former prime minister and his senior stalwarts have been spewing fire and brimstone against the higher judiciary. After his conviction and resultant ouster from office Sharif seems to be a no holds barred confrontation with the courts.
Admittedly it can be argued that branding Sharif as a mafia don and a member of the Sicilian mafia in its judgment on the Panama papers by the Supreme Court was perhaps going too far. Judges of the yesteryears would rather quote known legal authorities than from a famous — albeit of no literary value — novel penned by one Mario Puzo.
PML-N’s narrative spearheaded by Sharif and his daughter Maryam Nawaz is very simple: The apex court on the behest of the unnamed powers that be targeted them.
Sharif speaking at a recent seminar on the future of democracy lamented that every time democracy starts strengthening, there are a few biased individuals in state institutions that try to thwart the process. This is a very strong indictment of the army and judiciary.
Sharif has amply demonstrated that despite serious charges of corruption against him, he is no walkover
Judging by the chequered history of the country where extra constitutional interventions were the norm rather than the exception, he has a point. But Sharif’s own role in the service of democracy during the past decades can be called into question. In this context, at least till the recent past he was as much part of the problem as its solution.
Why would Sharif’s handpicked army chief be part of a conspiracy to oust him? Perhaps the unsaid grouse is that the military leadership should have interceded in order to bailout Sharif from the clutches of the Court.
The army leadership perhaps having already burnt its fingers in the spat over the Dawn leaks affair steadfastly kept itself out of the fray. If Sharif was left out in the cold it was mostly his own fault.
The conviction of Hashmi and subsequent notices to Tallal Chaudry and Daniyal Aziz is being viewed as a stern warning to others including the former prime minister. Sharif too busy stomping the ground with his rhetoric — mujhay kyun nikaala (why was I ousted) — does not seem to be in a mood to listen. His narrative has served him well politically so why would he abandon it with general elections round the corner?
Most PML-N spokespersons insist that Sharif has the highest respect for the judiciary. He is only making fair comment on a judgment against him that he considers to be patently unfair and biased towards him.
Actually Sharif has drawn a very thin line between fair comment and bringing the judiciary as an institution into disrepute. He mostly speaks about the role of the judiciary in supplanting military takeovers by legitimizing them and throwing out elected prime ministers in the past.
No one can disagree with him on this point. Whenever democracy was trampled under the jackboots or by a president with arbitrary powers the higher judiciary not only legitimized such actions it knowingly helped to perpetuate them by providing a legal umbrella.
Ironically Sharif who is lamenting the role of the higher judiciary was a beneficiary as well as a victim of it. Being a protégé of the late military dictator Zia-ul-Haq he readily and enthusiastically chose not only to be part of the conspiracy to oust the then prime minister Muhammad Khan Junejo but to take over his party as well with the active help of the establishment.
On the flip side General Pervez Musharraf’s coup in 1999 to oust Sharif’s government and its subsequent legitimization by the CJP (Chief Justice of Pakistan) Irshad Hassan Khan is a dark chapter in our judicial history. The apex court not only legitimized Musharraf’s takeover it readily gave him three years, on the pretext of fixing the system to perpetuate himself.
He mostly speaks about the role of the judiciary in supplanting military takeovers by legitimizing them and throwing out elected prime ministers in the past
Thankfully times have changed. The higher judiciary has come of age since then largely owing to the lawyers’ movement and the struggle of the political opposition to liberate the judiciary; as well as the assertive role of the CJP Iftikhar Muhammad Chaudhry in defying General Pervez Musharraf.
However the litmus test of the independence and fearlessness of the judiciary will be judged by how it behaves in the face of (God forbid) another coup. Hopefully that day will never come.
Democracy is finding its roots with the second consecutive general elections on the anvil. The military over the years has also come to the conclusion that an overt takeover is not in its long-term interests. It neither has the desire nor the gumption to directly rule.
Hence Sharif’s claim that there is a grand conspiracy to keep him out of power is somewhat exaggerated. Nonetheless it politically suits him to play the victim card.
The PML-N has the best of both worlds. It is the government as well as the opposition. His handpicked Prime Minister Shahid Khaqan Abbasi is quite pliant and cooperative with the military establishment.
The presumptive prime ministerial PML-N candidate Shahbaz Sharif never utters a word against the judiciary or the establishment. Certainly this is not happening without tacit support of the elder Sharif.
All this if on one hand is good politics is also tantamount to playing with fire. Sharif has amply demonstrated that despite serious charges of corruption against him, he is no walkover. As his own nominated prime minister puts it, he is the main vote getter for the PML-N.
However despite the bravado he knows fully well that under the present dispensation he cannot be prime minister even if the PML-N wins the next general elections hands down. Sharif although the savviest politician of the country and PML-N still the party of preference, has somehow passed his sell by date in the eyes of the power centers of the country.
The spat over the Dawn leaks proved to be the proverbial last straw. The military it seems is no longer comfortable doing business with him. On the other hand, the younger Sharif is their favourite and the PML-N their party of preference.
Most jurists notwithstanding the gravity of his crime, have termed the sentence meted out to Nehal Hashmi as excessive, especially when he was made to tender an unqualified apology.
This is an era of hyper judicial activism in Pakistan. The CJP should however cautiously tread this path.
Using suo moto powers to put a brake on police excesses, governments’ perceived malfeasance and crimes against women and the downtrodden is certainly welcome. But the apex court cannot arrogate itself to run the administration. This is the job of the politician elected for the purpose.
Nonetheless the Supreme Court in its wisdom from time to time can issue injunctions to the administration. But judicial activism should be tempered with judicial restraint, lest the judiciary is accused of playing to the gallery, which should remain the forte of the politicians.
