“Pity the nation that launches a movement for rule of law but cries foul when the law is applied against its bigwig….” — Justice Asif Saeed Khosa
THERE are two aspects regarding public perception of the Sharif family and its interaction with the rule of law. Firstly, in comparison with other political elites, the rule of law and the judicial process have been far more successfully deployed by the Sharifs to win high-stakes political cases against and encounters with other political elites and the military elite. Secondly, in comparison with other political elites, the Sharif family has not been subjected to any serious legal accountability by the courts.
Therefore, without in any way touching on the Panama leaks case, which is sub judice, an examination of Pakistan’s judicial history leads to two questions with regard to this public perception. Firstly, as compared to other political elites, have the Sharifs been far more successful in winning high-stakes political cases and encounters through the courts? Secondly, what are the main reasons for the Sharifs’ successful legal strategy?
What are the main reasons for the Sharifs’ successful legal strategy?
Hall of victorious justice: Three cases illustrate how the Sharifs have outmatched other political elites when it comes to legal successes and victories. Firstly, after a murder trial universally recognised as flawed, Zulfikar Ali Bhutto was hanged through the judicial process. In an equally flawed hijacking trial in 2000, Nawaz Sharif was sentenced to life imprisonment but not awarded the maximum sentence of death, and Shahbaz Sharif and five others co-accused were actually acquitted by the courts, all at a time when Pervez Musharraf was entrenched in power. Moreover, on an appeal filed after a nine-year delay, the Supreme Court finally acquitted Nawaz Sharif of hijacking and other charges.
Secondly, even though there was evidence to suggest that the 1997 attack on the Supreme Court was instigated by the Sharif regime and though PML leaders and workers were convicted by the Supreme Court for contempt of court in 2000, the Sharifs have never been held accountable for this unprecedented attack on the court.
Thirdly, the Supreme Court in the Air Marshal Asghar Khan case held that the 1990 elections were manipulated and ordered an inquiry against Nawaz Sharif and others for allegedly receiving illegal funds. But no serious investigation has been conducted into the manipulated elections, whose main beneficiary was Nawaz Sharif becoming prime minister. Just compare this with the rigorous implementation of the NRO judgement through the courts.
An examination of A Judge Speaks Out by retired justice Ajmal Mian or Law Courts in a Glass House by retired justice Sajjad Ali Shah, or the publicly released 1998 tapped phone conversations between Lahore High Court judges and the Sharif regime to manipulate the criminal trials of Benazir Bhutto and Asif Ali Zardari, seems to suggest that the reason for the Sharifs’ successful legal strategy is the direct illegal manipulation of the judicial system and judges. Even though important, this is not the main reason behind the success of the legal strategy. Three such key reasons can be identified.
Permanent ruling elite: Nawaz Sharif’s political career has been unmatched in the annals of Pakistan’s ruling elite — numerous times chief minister of Punjab along with his brother, thrice prime minister of Pakistan, part of both the military and democratic ruling elites for nearly 25 years since 1981, and along with Musharraf the only other Pakistani leader who allowed a physical assault on the Supreme Court of Pakistan. As part of this permanent ruling elite (along with the military elite), the Sharifs’ political power has made the courts very cautious in acting against them especially as, given the past, there is a real danger of personalised attacks on judges and even a physical assault on the court. In short, like the fear of the military elite, the fear of the Sharif elite has been deployed as a part of their successful legal strategy.
Law as a tactical weapon: There is virtual consensus among intellectuals from Marxists like E.P. Thompson to right-wing thinkers like F.A. Hayek to liberals such as Francis Fukuyuma that the greatest supporter and benefactor of the rule of law has been the capitalist elite. A history of the Pakistani rule of law has been a history of the Pakistani business elite employing the rule of law to safeguard their businesses and political interests. The Sharifs are masters at using due process, procedural loopholes, complicated and contradictory laws, and endless appellate processes to build their rule-of-law fortresses to safeguard their vested interests. Similarly, with great foresight, the Sharifs supported the lawyers/judicial movement of 2007-2009 in order to use this movement to neutralise the military elite and to create a favourable judicial impression about themselves. From leading a physical assault on the rule of law, the Sharif’s transformed themselves to become leaders of the rule-of-law movement.
Rule not of law but of big lawyers: As judges have a professional requirement and liking for competent lawyers, the Sharifs’ use of the rule of law is executed through big, rich or successful lawyers. Instead of public service or morality, the big lawyers’ only love affair is with big cases, big money and big power; they act for the weak only if they gain personal fame. Moreover, our unconstitutional culture has an illustrious judicial history, eg with two of our brilliant chief justices, Munir and Cornelius, serving under military dictatorships and our best lawyers, like A.K. Brohi and Manzur Qadir, serving military dictatorships. No wonder, Nawaz Sharif’s present lawyer is a former loyal attorney general of Pervez Musharraf.
But are the Sharifs’ legal games coming to an end in the present era of an independent judiciary, and great public expectations for both the equal application of the law against the rulers and administering not merely formal but substantial legal justice? Or in the words of the Pakistani Supreme Court itself, “Pity the nation that is led by those who laugh at the law little realising that the law shall have the last laugh.” This indeed is the defining question.
The writer is a lawyer.
Published in Dawn, January 23rd, 2017