Author : Vinayak Dalmia

Expert Speak Raisina Debates
Published on Sep 12, 2017

In earlier coups, the Army used the Court as an afterthought to "justify" its actions. Now for the time the Court was used as the first port of call — this can prove to be a new modus operandi in Pakistan — where the method of engineering political outcomes even by the Army depends firmly on the courts. Under the backdrop of Former PM Sharif's ouster, it is apparent that Martial Law is proving to be an outdated instrument for change. This article traces the history of the Pakistani SC and how the courts have evolved to engineer political outcomes — at the behest of the GHQ.

Coup by Court — The Pakistani Army's new modus operandi

Source Image: Flickr user Mo

The corridors of law in Pakistan have been in the thick of things in the recent months. The drama started with the ouster of Nawaz Sharif as Prime Minister. This followed the recommendation of the National Accountability Bureau (NAB) to seize the ex-PM's family assets. In another unrelated event few days later, the Pakistani court declared former military ruler Pervez Musharraf as a "fugitive" in the murder trial of former Prime Minister Benazir Bhutto. These are more than mere coincidences. A pattern is emerging with the wheels of justice as the new arrow in Rawalpindi's quiver.

The Arabic words Sadiq and Ameen stand for honest and righteous. They say words have the power to move mountains. But little did anyone imagine that innocuous adjectives also have the capacity to overthrow a Prime Minister and orchestrate a political coup. While Nawaz Sharif has been sacked twice before, it is for the first time that the court was kind to do the honours.

The Sharif family has long been a significant power structure in Pakistan with its varied business conglomerates and a political grip over Punjab. Nawaz Sharif has been thrice elected PM while brother Shehbaz is in his third term as CM Punjab. The family emerged as a counter narrative to the old guard Bhuttos under the tacit approval of the army. But politics seldom has permanence in alliance or bedfellows.

The Panama Papers had worrying details of significant illegal accumulation, especially assets overseas. It's almost comical that the final nail on the cross was due to receivables of INR 1,75,000, while the original reason for a court intervention, the Panama Leaks allegedly involving millions gets altogether forgotten. Former Ambassador Hussain Haqqani called this a "Judicial Coupand said that the Pakistan SC is "willing to act as an arm of the deep state" —  while some opposition parties celebrate this victory for the "rule of law". It will be interesting to see how long before they also face the same wrath — very Sadiq and Ameen.

When elected in 2013, Nawaz Sharif wanted to establish the supremacy of the Prime Minister and of the Constitution. He made no friends with his foreign policy agenda, especially with his India outlook. The backlash was to be expected. Instead of sending marching men and machines to the palace, the fall of the hammer was preferred.

Pakistani courts, particularly the Supreme Court is evolving into a political power structure on to itself — in collusion or deference to Rawalpindi. The GHQ has got itself a new weapon which is more palpable to brute military takeovers.

It is near impossible to prove such conjectures, but the history, surrounding circumstances and key beneficiaries must be analysed. Notwithstanding Sadiq and Ameen, If the GHQ believed that Nawaz Sharif was a worthy ally, would the honourable court still hold this view? Moreover, if the army believed that the court would not oblige, would they be silent spectators?

There are several flaws with the provisions of Sadiq and Ameen. This vague and highly subjective framework was introduced into law by General Zia-ul-Haq, under the clauses of Articles 62 and 63 of Pakistan's constitution. General Musharraf further obliged by adding various sections to this clause to push it towards unrealistic subjectivism.

Started by Zia — these  and other ambiguous provisions only came into vogue in 2011 — with the former Chief Justice of Pakistan, Iftikhar Muhammad Chaudhry, who began using them as a basis to disqualify Members of Parliament. Ironically writing in a 1988 journal, Justice Asif Saeed Khosa, current bench member of the Panama Case, declared that article 62 (1) (f) provided "a feast of legal obscurities." But that was then, this is now.

The court procedures were also found wanting on many fronts. Firstly, the court did not conduct a trial — it instead accepted the findings of an investigative committee — on which two out of the six members were from the military. Secondly, the Supreme Court should not have been the first court hearing this matter — there was a clear breach of jurisdiction. Thirdly, the committee concluded on a flimsy technicality and not even on the real Panama issue.

Old wine, new bottle

The courts entanglement with politics and the military dates back to 1951 with the first political assassination of then Pakistan PM Liaqat Ali Khan — an Enquiry Commission was set up but yielded less than desirable outcomes. This came to be known as the Rawalpindi Conspiracy.

In the 1955 Governor General Case, the Federal Court relied on the "Doctrine of Necessity" which allowed the Governor General of Pakistan to act in a legislative capacity even though he had no authority for the same per the Government of India Act, 1935, and the Indian Independence Act, 1947. Justice Cornelius believed that the Governor General's actions went beyond his jurisdiction.

For a brief period in 1956, Pakistan found itself with a republican Constitution. But that was short lived. In 1958, the president amidst intense political upheaval dismissed the government, dissolved the Parliament and appointed General Ayub Khan as the Chief Martial Law Administrator. Soon after, the Pakistan Supreme Court ruled (State v. Dosso) that the 1956 Constitution was no longer the governing document and replaced its supremacy with the 'will of the President' (Grundnorm). As a result, all individual rights recognised in the 1956 constitution were made invalid. This was considered a premature and hasty ruling.

In 1969, the court in the Asma Jillani Case, gave legal effect to the unconstitutional usurpation of power by General Yahya Khan relying on the notion of "implied mandate". The court again appeared keen to accommodate the regime. This was in many ways a derivation of the necessity doctrine, focusing on "condonation and not legitimation."

In 1977, General Zia-ul-Haq ordered Martial Law and orchestrated a successful takeover of the Zulfihar Bhutto Government. Mrs. Bhutto, relying on the 1973 constitution, moved the Supreme Court. In Bhutto v. Chief of Army Staff, the Pakistan Supreme Court validated General Zia-ul-Haq's action and regime. The court could not fit this action under any other doctrine and therefore justified it on the "necessity principle". The Necessity Doctrine requires that the state and not an outsider undertakes the act. In this case, General Zia acted on his own in flagrant disregard of the law of Pakistan and against the orders of the civilian government led by Bhutto. Although the court claimed it felt no pressure from the regime, it is difficult to take that statement on face value. The Necessity Doctrine was wrongly invoked and excessively applied. The court supported this conclusion by quoting extensively from Zia's speech on the evening of the coup.

Per legal scholar Mark M. Stavsky, in a coup, "reliance upon the necessity doctrine is a sham." He went on to say: "Events in Pakistan subsequent to the decision demonstrate that a military dictatorship will use the legal process only to the extent that it helps to consolidate the regime's power."

Finally, the court also awarded Bhutto a death sentence. There was a near split judgement with three of the seven judges dissenting with the majority view. In fact an independent judgement was given by Justice Dorab Patel, who disagreed with the majority view.

When it came to Musharraf in 2007 the court went through many sways. Initially, it reversed the trend of the Doctrine of Necessity, but later on protected him. It was also alleged that some in the judiciary was blackmailed by the security establishment. Compromising videos were sent to at least three of the 11 judges deciding the case. It is interesting to note that now the courts have taken unfavourable view of Musharraf's alleged involvement in Benazir Bhutto's assassination.

Over the years, Pakistan's highest courts have legitimised unconstitutional regimes — relying on ever changing legal principles. Yesterday's necessity has become today’s Ameen. The only constant has been the hand of GHQ.

In the earlier era the courts were used as an afterthought to provide an aura of legitimacy to military action. The Sharif judgement could prove to be a watershed moment wherein the courts became the first port of call and restores the Supreme Court as a collaborator of the army.

For all its muscle the army still has a constituency — both at home and abroad. It can't not stretch the fabric infinitely — therefore perception matters — boots and stars notwithstanding. A collaborating higher court provides just that — a veneer of respectability and due process. This takes special significance in the current era. First, the international community's patience with Pakistan is wearing thin — with the Trump Administration in the US, one can expect significant changes in posturing and in the relationship. As a sign of things to come, the New York State Banking regulator has slapped a $225 million fine on Pakistan's Habib Bank and ordered its exit from the US on charges of "terror financing". Second, in the digital age it becomes significantly harder for regimes to manage the patience of its people — Pakistan is one of Asia's fastest growing internet markets — with a current penetration of 18% — adding one million users every month. There is only so much and for so long that the people will accept business as usual.

For India this does not change much — beyond another reminder that it can not engage with Islamabad at the cost of ignoring Rawalpindi. So India remains in the political love triangle for the near future. It changes certain things for Pakistan — a new political Sharif heir will be groomed — either in the shape of Shehbaz or in the light of Maryam. However, on the political front the situation is still unclear. There are wheels within wheels. According to Former Ambassador Haqqani: "hen the apex court removes the Prime Minister directly, voters are unlikely to like that. So far there is no sign Punjab's voters have deserted Nawaz Sharif or his grip on PMLN has diminished." According to ex-Congress MP Mani Shanker Aiyar, there are "rumours" of "differences" between Nawaz and his brother Shehbaz. He also believes that Nawaz has succeeded to remain politically relevant and that these "forces will remain in play" till the elections next year. However the political moves still do not change certain realities for Pakistan — the army still rules the roost only increasingly employing the mechanics of the judiciary.

It is fashionable to do Pakistan bashing. But there is little to gain from that. To understand the flow of geopolitics, one has to delink a people from its institutions.

In the case of Pakistan the army proves to be the crucial stakeholder. The army has a "Minus-3 Formula" — having already nudged three significant leaders — Altaf Hussain, Sharif and Zardari — into a corner.

However, in the era of hashtags and Facebook likes, a military coup is messy and proves for damaging PR. Therefore resorting to the law and alibis of technical procedures proves more elegant to mask the actual agenda. In a 'Post Coup Pakistan,' one can expect the courtrooms to be the real theatre of military action.

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Vinayak Dalmia

Vinayak Dalmia

Vinayak Dalmia is an entrepreneur and political thinker. He has worked with the Indian Prime Minister's Office and McKinsey &amp: Co. Vinayak regularly writes and ...

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