I am writing this on July 30, but readers will see it much later -- more than a week after Nawaz Sharif was defrocked. Assuming they read another newspaper or two and watch a little TV news, these readers will have read or heard just about everything that could possibly be written or said about the Sharif defenestration.
I doubt I can add any new ideas or thoughts. But while joining the parade late, as usual, perhaps of interest will be the questions that the process and its conclusion raise in my mind, given that I am an outsider whose own country is heading towards a similar crisis.
The US crisis will be different in that the incumbent president, if there is a move to remove him, is almost certain to fight back tooth and nail and could possibly tear up the Constitution in the process. In Pakistan, so far, all involved have acted wisely and within the law, which is good.
Both cases prove that, when it comes to removing a head of government or state, a constitution, no matter how old and venerated, is only a parchment to be used as a defensive tool or to be waved rhetorically; politics is the driving force.
First question
Why was an idiosyncratic interpretation of the Constitution used to unseat the PM; why was the process not allowed to play out under a more reasonable interpretation of Articles 62, 63, and which would have referred him to a criminal or accountability court which would have likely found him guilty of corruption?
Did the five-judge Supreme Court panel not trust the other parts of the judicial system or was there a political fix in to get rid of him now?
If there is anything that makes the court’s judgement appear contrived, it is the fact that it was based on Sharif’s failure to declare as an asset (his salary) on his MNA nomination papers which he claims he never drew from the FZE Corporation.
The court declared in its decision that not withdrawing the salary, ie not receiving it, “would not prevent the un-withdrawn salary from being a receivable, hence an asset.” This strikes outsiders such as myself as rather tortured reasoning, the kind that is often used when a court is stretching to reach an already predetermined conclusion.
There is too much about this judgement that seems hurried, not thought through, certainly not thought through with the interest of strengthening democracy uppermost in mind
American lawyers I have asked about this say that it seems rather odd not to give the accused the benefit of the doubt unless there is solid proof that he did actually receive the income, as at least one definition of receivables would not seem to require him to report it, and even so it would be a rather trivial reason to disqualify a nation’s head of government from politics. The court’s judgement asserts in paragraph three (I think this was a JIT assertion) that FZE salaries are automatically paid electronically by a statute of the UAE: “Which belies his [Sharif’s] stance.”
But I saw nothing in the judgement that provided real evidence that Sharif did receive his FZE salary, which then would have made it income and probably would have been enough to support his disqualification.
Without that evidence, the finding that his un-withdrawn salary was a receivable and an asset is open to challenge. And this might provide the basis for an appeal. I reckon there could be a petition to the chief justice for the full bench to review the judgement.
Dictionaries mention two accounting definitions, the accrual method, which is what the court used, and the cash method, in which a company or individual uses cash receipts for accounting. In this, income doesn’t become taxable, and an asset, until it is collected.
Second question
What does this court decision do to strengthen democracy in Pakistan? Isn’t this just a continuation of the historical drift that increases the uncertainty of politics and holding political office? How does this increase the sustainability of a rules-based system of governance?
This decision, based on what I would call a rather tenuous and debatable legal finding, would only widen the scope for finding parliamentarians unqualified. In fact, if applied very strictly, Pakistan might wind up with an empty National Assembly.
There is too much about this judgement that seems hurried, not thought through, certainly not thought through with the interest of strengthening democracy uppermost in mind.
The irony of the fate of Nawaz Sharif keeps coming back to me. He was undone by Articles 62 and 63 of the Constitution, which as I understand it were put in the Constitution in 1973 to strengthen the National Assembly.
They were then amended during the time of the Zia ul Haq military regime to add in mention of the vague virtues of “sadiq and ameen,” (honest and righteous) on whose count he failed.
These virtues can mean many different things to different people (a Pakistani friend calls them “impracticable and absurd”).
Nawaz was the civilian prodigy of that same regime; he was to be the civilian leader who held off the PPP and Benazir and save Pakistan from its version of liberal democracy. Nawaz has since come a cropper twice -- and perhaps three times -- because of the military. This pervasive military link to his political career, and the continual antagonism between him and the military makes it difficult for me to dismiss the idea that the military could be involved in this process.
That possibility only increases the uncertainty of sustaining progress on real democracy.
Third question
What does this decision do to enhance the reputation of the judicial system as a bulwark of democracy? The high court has been involved in so many questionable decisions with significant political overtones that its reputation as an impartial arbiter of democratic squabbles is stained. Will this decision begin to rectify that reputation or just strengthen it?
The courts have been powerful in Pakistani politics throughout its 70-year history by becoming compliant to the real sources of power: They came up with the Doctrine of Necessity, to justify military coups; they tried and executed ZA Bhutto; they disqualified PPP Prime Minister Yusuf Raza Gilani only a few years ago on flimsy pretenses also; and there has been much else in between.
The courts don’t seem to have done much to strengthen democracy in Pakistan, and it is not clear to me that Friday’s decision will be a start on that.
Fourth question
I read that the court decision is popular in Pakistan, yet I also read that if the national election were held today, the PML-N, led by Nawaz would win in a walk. If that seems contradictory, it is, but contradiction is common in politics, and perhaps not a bad thing. But if there is an election, either next year or sooner, and the PML-N, led by Nawaz or another Sharif, does win big, what does that do to strengthen democracy?
Would the party not be inclined to non-democratic behaviour to avoid repeats of what just happened, and to increase its economic rents while it can?
William Milam is a Senior Scholar at the Woodrow Wilson Center in Washington DC, and a former US diplomat who was Ambassador to Pakistan and Bangladesh. This article previously appeared in The Friday Times.
