Judicialisation of leaders

November 11, 2017

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“The culture of passing the candidates by granting grace marks has not delivered the goods. It has rather corrupted the people and corrupted the system.” — Justice Ejaz Afzal Khan

SOMETHING big is happening and it is neither a conspiracy against democracy nor a jubilant triumph of the rule of law.

What does the successful legal and judicial movement against Pervez Musharraf, the disqualification of prime minister Yousuf Raza Gilani for contempt, and the disqualification of prime minister Nawaz Sharif for misdeclaration, have in common? All these judicial challenges happened when these leaders had power and were in government, and the changes in leadership were brought about by the judicial process.

It is erroneous to think that this is a mere continuation of judicial history eg the judicial murder of Bhutto etc., because those old cases were decided against the political leadership when they were not in power. Leaving aside the causes and consequences of this judicialisation of leaders phenomenon, let us understand what the latter is by examining the reasoning given in the recent Supreme Court judgement, dismissing Nawaz Sharif and his family’s review petitions.

Short and fatal reasoning: Each main objection raised by the Sharif family was taken up and dismissed by the court. Firstly, two facts were surprisingly admitted by Nawaz Sharif — from July 2006 to January 2013, salary from the Dubai company accrued and accumulated in his favour and this salary was not declared in his nomination papers. Nawaz Sharif’s only argument was that he never claimed it, and thus waived it in favour of the company. Hence, the judgement holds that “it was an asset out and out” because his exclusive power to withdraw or waive proves it to be an asset. Indeed, it is a rather strict view taken by the Supreme Court but it is equally difficult to disagree with the court’s logic especially after Nawaz Sharif’s admission.

The detailed judgement will be seen less in terms of its reasoning and more in terms of its spirit.

Secondly, their argument that Nawaz Sharif’s omitting to disclose this salary asset was unintentional was rejected by the Supreme Court on the grounds that this would “have been tenable had the petitioner been a novice or a new entrant in business and politics ... this argument cannot be given much weight when it has not been pleaded by the petitioner that the omission to mention the asset was accidental, inadvertent”. This reasoning further exposes Nawaz Sharif’s failed legal strategy.

Thirdly, regarding their argument that the issue of non-disclosure of his unwithdrawn salary from the Dubai-based company in his nomination papers was never raised in the petitions, the court reminds that the issue of this company ie Capital FZE was specifically raised and framed in the separate judgement (April 20, 2017) of Justice Ijaz Ul Ahsan. Needless to mention that this earlier judgement was surprisingly not challenged but rather celebrated by Nawaz Sharif’s family and defended by their counsels.

Fourthly, the court rejected their point that the Supreme Court could not have assumed the power of the NAB chairman by ordering the filing of the NAB references; the court holds that this argument could have been accepted “had there been no institutional capture, seizure and subjugation of all the important institutions of the state … through the cronies and collaborators of the person at the peak”.

Needless to say that this potential filing of NAB references was clearly indicated in the earlier judgement of April 20, 2017, which was surprisingly not challenged but rather celebrated by Nawaz Sharif’s family and defended by their counsels.

Fifthly, the court rejects their argument that the appointment of a monitoring judge is a violation of the accused’s right to due process; instead, it holds that “it is to guard against intrusion of casualness in the proceedings before the trial court. Such practice, by no stretch of imagination, implies that the monitoring judge would in any way influence or interfere with decision-making process of the trial court”.

In order to understand the ‘casualness’ that the court is referring too, one simply has to examine Section VI of the JIT report dealing with previous and pending NAB/FIA cases against Nawaz Sharif’s family to understand how “cronies and collaborators of the person at the peak” have disrupted and destroyed these cases.

Sixthly, on their publicly debated objection that there are multiple judgements, first by a three-member bench and then by a five-member bench on the same day and at the same time ie July 28, 2017, the Supreme Court surprisingly notes that lawyers for Nawaz Sharif’s family “opted not to press the review petitions filed before the three-member bench”. In non-legal terms, his counsels surprisingly gave up this objection. If it was such a strong objection violating due process, why was it given up?

Spirit of reasoning: Judicial historians will understand this judgement less in terms of its reasoning and more in terms of the spirit underlying it. This spirit is best captured on pages 12-14 (paras 8-9) of the judgement. In language that is quite emotional, the Supreme Court holds “Nor could have we let him get away with it simply because he happened to be the prime minister … He never came forth with the whole truth. He tried to fool the people inside and outside the parliament. He even tried to fool the court ... Any concession at this stage or any leniency to the candidates or the person elected would be a prelude to a catastrophe in politics … Since it is already touching the extreme, extreme measures have to be taken”.

Such language symbolises the birth of a new era in which the ruling elite of this country will be determined by an unstable mixture of the popular vote, judges and the army. David Robertson has captured this judicial approach by noting that “constitutional judges often come near to being applied political theorists”.

Since 2007, Pakistan’s democracy, constitutionalism and judiciary have dramatically changed. Those who think that this is just a repeat of past judicial history understand neither the promise nor the grave dangers that lie ahead.

The writer is a lawyer.

Published in Dawn, November 11th, 2017