Photo Source: Dawn

How much ever noble the intentions are, the judiciary should remain as one of three pillars of the State and ensure it fulfils the constitutional role.

Judicial Politics

Nawaz Sharif, PML-N and the Judiciary

D. Suba Chandran
International Strategic and Security Studies Programme (ISSSP)
National Institute of Advanced Studies (NIAS), Bangalore

For the last few months, there has been a struggle between the Judiciary and Nawaz Sharif in Pakistan. A series of verdicts, including the latest one on disqualifying Sharif from being the leader of PML-N and null the decisions (in retrospect) that he has taken as the leader of the party (nominating members for the Senate in Pakistan Parliament) – are considered by a section as harsh. 

Others feel, some of the judgements and the positions that the judges have taken will impact the constitutional process. The primary question is: where will this judicial assertion take Pakistan further? 

There are other significant questions as well. Is the judiciary and its judges crossing the constitutional line, and the separation of powers enshrined in the constitution? Do some of the statements and verdicts by the judges signify a danger of politicisation of the judiciary and impact on the prestige of the institution? Is the politics pursued by Nawaz Sharif and his daughter – Maryam Nawaz against the judiciary is even more dangerous? In the long run, is there a risk of PML-N politics pitting the public against the judiciary? 

An immediate question will be: what happens to Nawaz Sharif and the PML-N?

Judiciary, Nawaz Sharif and the PML-N
The last few months have been turbulent for Nawaz Sharif and the PML-N. It was almost like the butterfly effect politically, with the release of what came to be referred later as Panama Papers (more than 11 million files) elsewhere on a leak from an offshore firm. While numerous political leaders cutting across national boundaries have been found evading taxes and operating secretly their wealth, Pakistan’s domestic politics ensured that it became a centre of the storms. Many in Pakistan even suspect that the Deep State played a role to exploit the situation against Nawaz  by orchestrating the events and also manipulating the investigation process.

While those manoeuvres behind the scene will never be known, the judiciary found Nawaz Sharif guilty in one of the cases – where he failed to mention the salary that he was to receive from a firm while filing his nomination papers. The judicial verdict on his disqualification is considered harsh.

Following the judicial disqualification of Sharif as the Prime Minister, Nawaz pursued a four-prong strategy along with his daughter and close affiliates. The first strategy was to accept the verdict, and found replacements. Abbassi was appointed as the Prime Minister. Sharif ensured Kulsoom Nawaz his wife, contest the seat that went vacant because of his disqualification; she won the same and the PML-N retained it. 

His second strategy was aimed at to retaining his position as the chief of the PML-N. He did succeed in this, until the latest verdict from the judiciary that a disqualified leader is not eligible to lead a party.

The third strategy has been significantly successful. Along with his daughter and close affiliates, Sharif took the verdict to the people of Punjab and had been projecting that there is an extensive conspiracy against him and the PML-N. One could see, he has been successful in this; PML-N not only won the Lahore seat for the National Assembly that he had vacated, but also captured another NA seat – Lodhran from the PTI. One could be reasonably certain, that this strategy of going to the people is working for him and his party. There is a larger sympathy for Nawaz and the PML-N in Punjab.

The fourth strategy – one is not sure deliberate or not, kept Shabaz Sharif “clean” from the local politics, and ensured he is acceptable to the other institutions. While numerous statements were made by Sharif’s inner cabal about vendetta politics, conspiracy and judicial coup, Shabaz did not make a single loose statement. One is not sure, whether this was deliberate or otherwise – but it is working. He is likely to become the PML-N President and take the party through the forthcoming elections.

Will the PML-N wither away?
Certainly not. On the contrary, the PML-N is likely to get stronger electorally in Punjab.

Perhaps, a section in the Deep State expected that judicial cases against Nawaz Sharif will weaken his position within the party – leading to his removal by the party. A section expected, that the party itself will break vertically creating a new block. This would not be first time that the Muslim League in Pakistan got divided either by a divide within or through machinations by the Deep State.

The PML-N seems to have weathered the crisis so far and repeatedly faced the judicial tsunamis. There is no sign of the party weathering away. Credit should go to Nawaz Sharif and Maryam Nawaz for putting up a brave face.

However, the strategy they have employed to keep the party united may not be above board. Repeatedly the Nawaz camp has used sloganeering to project that Nawaz and PML-N have been wronged – this time by the judiciary. 

If the last two bye-elections in Lahore and Lodhran are considered as precursors, the forthcoming election is likely to see the PML-N getting back to power under Shabaz Sharif with a larger mandate than during the previous elections.

Is it the end of road for Nawaz Sharif?
Certainly not.

Political leaders in South Asian democracies can never be wished away after a debacle – political, military or judicial. The history in South Asia is replete with examples of how populist leaders always bounce back. Sharif himself bounced back after he got exiled by Gen Musharraf a decade ago. Consider, where that dictator is today!

Unless the judiciary puts him inside the prison, or the Deep State end up in exiling him, (or worse, he ends up like Benazir Bhutto) Sharif is likely to campaign for the PML-N. Who knows, with a massive majority in the Parliament, the party may find a way to rehabilitate Nawaz politically.

Much will depend on the subsequent judicial verdicts.

Is there a Judicial Excess? And is the Judiciary getting politicized?

Many within Pakistan are stunned with the harshness of the original verdict (disqualifying Nawaz Sharif from being the Prime Minister) and the latest one on barring him from remaining as the Chief of PML-N. In particular, the verdict on making Nawaz’ nominations to the Senate as null and void – is being questioned. Though the media is relatively circumstantial to avoid any contempt of the court, one could sense a palpable disappointment. 

Is there an over-enthusiasm amongst the judges? Look at the recent statement of the Chief Justice of Pakistan: “I want to ensure supply of clean drinking water, clear environment, pure milk, hygienic meat, etc, and I wish that the farmers get reasonable price for their crops.” Undoubtedly, it is a noble thought that every individual should work towards, but is that the primary function of a Chief Justice? Isn't it the responsibility of our elected leaders and the bureaucracy? 

Is the judiciary overstepping into other institutions? Perhaps yes. How much ever noble the intentions are, the judiciary should remain as one of three pillars of the State and ensure it fulfils the constitutional role.

So, where to from here?

Keeping the sanctity of judiciary as an institution is important, especially in South Asia for three reasons. First, there is a greater trust amongst the civil society over the judiciary as the last resort. People have faith in the higher courts cutting across the region in South Asia. In the recent years, one could sense a frustration amongst the people on this. Cost, delay, treatment of common man within the court, and corruption has made many becoming cynical of the functioning of the judiciary. In South Asia, we cannot afford this trend; judiciary has to remain above board.

Second, in Pakistan, where the military has intervened in the governance process and a Deep State pulls strings behind the scenes, it is essential the judiciary stays above board and not be seen as a part of a broader political re-engineering. Perceptions are important on this as are the actions. 

Unfortunately, given the current trends, one could expect a proactive role by the Parliament in trying to guard its territory vis-à-vis any judiciary encroachment, once the elections are over and PML-N returns with a majority. A parliament-judiciary tussle for power is on the cards, if the PML-N returns to power with a larger majority.

Third, judiciary cannot be seen as engaging in a tit-for-tat response in public. While one could expect (and even accept) an element of a street fight by the political leaders, the rest of the civil society hope the judiciary and judges to be dignified. Referring a Prime Minister – leader of the Parliament to “God father” and “Sicilian Mafia” is certainly unacceptable. One does not expect such a vocabulary by the dignified judges. 

If this trend continues, the judiciary’s image will get affected. Political leaders can make such statements in the public, and get away with an unconditional apology in private. But the judges and the judiciary will have to be beyond this.

The author is a Professor and a Dean at the National Institute of Advanced Studies (NIAS) Bangalore. He edits an annual - Armed Conflicts in South Asia and maintains a portal on Pakistan – www.pakistanreader.org.
The above was first published in the Rising Kashmir, February 2018 



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