Paradox of accountability

24 Jul 2017

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THE Panama judgement of April 20, 2017, and the resultant report of the joint investigation team have given rise to a rigorous public debate. But the more fundamental questions still remain unanswered: why and how did subordinate civilian and military civil servants on the JIT issue such a devastating report against a powerful sitting prime minister? Even if the actions of the Supreme Court and JIT are perfectly legal and just, aren’t there still unintended negative consequences? In other words, can good actions coexist with bad consequences?

Wise and brave judiciary: After the issuance of the JIT report, re-reading the Panama judgement makes obvious the judicial wisdom contained in the five separate notes of the five judges. Firstly, Justice Ejaz Afzal deferred the question of disqualification and criminal proceedings against Nawaz Sharif and his family only after a thorough investigation. He ordered the creation of a special implementation bench to oversee the investigation “so that the investigation into the allegation may not be left in a blind alley”. It is the wisdom contained in this last sentence which made the JIT really effective.

Secondly, Justice Azmat Saeed, deeply sceptical about the answers provided by Nawaz Sharif and his family, declared that “when the matter relates to persons in high places, special measures need to be taken” and thus felt “constrained to cast a wide net as regards to the institution, the offices whereof to form the members of JIT”. It is the logic and wisdom behind this last sentence, which led to the inclusion of the ISI and MI in the JIT, and that made the JIT independent of the ruling political elite.

Perfectly legitimate civilian accountability also becomes military politics by other means.

Thirdly, Justice Ijaz-ul-Ahsan’s judgement, although he formally sided with the majority judges, has more commonalities with Justice Khosa’s judgement than with that of the others except on the interpretation of Article 184(3). His devastating critique of contradictions, evasive replies, absence of a verifiable money trail and bogus documents of the Sharif family provides a solid evidential basis for the work done by the JIT. No wonder he is quoted twice by the JIT on the merits of the case.

Fourthly, Justice Khosa’s brilliant, devastating critique of the explanations of the Sharif family and his creative development of the standards of proof required in such cases provides the evidential and legal basis of the JIT report. Although not quoted by the JIT, Justice Khosa’s imprint is all over the report. Fifthly, Justice Gulzar’s courage of conviction to stand by what he believed to be the legal truth and the public interest, even though in a lonely minority, provides the backbone of the JIT report ie bravery.

Super independent, super efficient JIT: Even a cursory glance at the JIT report shows that it is logical, based on evidence, comprehensive and within the ambit of the scope conferred by the Supreme Court. But certain aspects stand out. Firstly, Nawaz Sharif’s replies are described as evasive, not corroborated, not consistent with the record and contradictory. The report says he failed to recall contents of documents and accuses him of adopting shifting stances vis-а-vis the JIT and Supreme Court.

Secondly, Section VI dealing with the direct nexus between Nawaz Sharif and the Hill Metal Establishment, from which company more than a billion rupees through gifts were transferred to the prime minister, and Section IX pertaining to his assets being beyond his known means, can become the basis for both his disqualification and NAB proceedings against him.

Thirdly, the findings against the Sharif family are fatal. They are accused of misleading and hoodwinking the Supreme Court, submitting fictitious documents, or those that have been tampered with, before the court and the JIT, giving contradictory and evasive replies and having assets beyond their known means.

Fourthly, the JIT findings are surprisingly very aggressive and arrogantly confident without showing even an iota of doubt about anything — 275 pages of evidence read like an effective intelligence operation. But no previous investigation initiated and supervised by the Supreme Court has been so super independent and super efficient. So why and how did this JIT achieve this?

In addition to the supervision of the court, two main reasons can be identified. Firstly, the presence of the ISI and MI countered the pressure of the sitting government and the IB on the JIT. This shows that accountability requires balance of power in Pakistan ie if you want to hold the powerful accountable, you need to be backed by one of the power brokers.

Secondly, the head of the JIT, Wajid Zia, in a rather unusual manner, stated in the report that “investigation for me, is the finding out of truth ... we have been successful to submit the truth”. Such idealism shows that the JIT members were conscious and inspired by their historical role in the prime minister’s accountability. But idealism also emerged because they were protected by the Supreme Court and the military.

Judicialisation of mega politics: What do the ouster of Gen Musharraf, the memo case, Yousuf Raza Gilani’s removal and the Panama leaks have in common? Answer: the judicial arbitration of mega political disputes. Pakistan’s transition to democracy has meant the transition from the militarisation of mega politics to the judicialisation of mega politics instead of the democratisation of mega politics ie political reform and compromise. The positive consequences are obvious: increased constitutionalism. But the negative consequences should also be obvious: courts replacing political reform and compromise are bound to lead to recurrent political instability.

A politicised but constrained military: When a politicised security establishment cannot impose military rule directly then an unintended consequence of constitutional rule constraining a politicised and powerful military is that the latter exploits constitutional and legal means, such as accountability, to achieve its political objective of dictating state policies especially security and foreign policy. Such aggressive accountability of Nawaz Sharif and his family is perfectly legitimate but the remarkable ruthlessness of the report against the prime minister and even his family members points to underlying reasons ie military’s conflict with Nawaz Sharif over Musharraf’s treason accountability and disagreement over the India policy. Thus, perfectly legitimate civilian accountability also becomes military politics by other means.

So, welcome to a politically brave new but inherently unstable Pakistan.

The writer is a lawyer.

Published in Dawn, July 24th, 2017