July 31, 2017

Last year’s release of the Panama Papers–documents belonging to Panamanian law firm Mossack Fonseca and containing confidential attorney-client information for more than 214,488 offshore entities–revealed that Pakistani Prime Minister Nawaz Sharif’s family owned offshore assets not declared to the Pakistani people.

A 3-2 Supreme Court verdict on April 20th, 2017 called for the appointment of a Joint Investigation Team (JIT) to further investigate the sources of the Prime Minister’s wealth. After the JIT submitted its report, the Supreme Court disqualified the Prime Minister from holding public office on July 28th, 2017.

We speak with Adnan Rafiq, who holds a PhD from the University of Oxford and conducted doctoral research on Judicial Independence in Pakistan, about the Supreme Court verdict and its implications.

The Supreme Court disqualified Prime Minister Nawaz Sharif from holding public office for not disclosing his “un-withdrawn receivables” from a Dubai-based company. The decision referred to Article 62(1)(f) of the Constitution which requires members of Parliament to be “sagacious, righteous and non-profligate, honest and ameen.” Other than questionable character, has the Supreme Court actually found the Prime Minister guilty of anything?

Apparently, the Supreme Court disqualified Prime Minister Nawaz Sharif for not disclosing his employment in a Dubai-based company where he had “un-withdrawn receivables” that were interpreted as “assets” by the Court. Along with Article 62(1)(f), the Court also cited section 12 (2)(f) of the Representation of the People Act 1976 (ROPA) that requires submission of statement of the assets and liabilities by candidates. The Supreme Court therefore found him guilty of concealment of assets and ruled that he is not honest in terms of Section 99(f) of ROPA and Article 62(1)(f) of the constitution.

The Court has asked the National Accountability Bureau to refer evidence of the Prime Minister’s money laundering, living beyond his known means of income, corruption, etc. to be sent to an accountability court. As such no verdict has been passed on these allegations. In the larger context, it is important to remember that two senior judges had already declared him disqualified in the original judgement of April 20th (2017) even before his employment in the Dubai-based firm came to light.

The Panama Papers leak was not the first time accusations of corruption were leveled against Nawaz Sharif. It did, however, lead to his disqualification from public office. What do you think was different this time around?

Accountability, meritocracy, good governance, and rule of law have been key demands of the educated sections of society since 1990s. The pretext of corruption was therefore used several times by the military to pull the plug on elected governments. Since then, an emergent urban, educated, middle class has expanded considerably and despises both (what they term as) “corrupt” industrial and feudal political elites as well as the “illiterate” poor who vote for them.

Key state institutions including the judiciary now draw heavily from this expanding section of the society and thus share the same world view and represent the same interests. Diffusion of electronic and social media has also helped shape wider public opinion and brought these issues to the forefront at the expense of other issues such as inequality, poverty, equitable distribution of resources, environment, etc. This has led to much more meaningful alignment between various social forces that has resulted in the disqualification of Prime Minister Nawaz Sharif at the hands of the higher judiciary.

There are some who see the Supreme Court as providing necessary judicial oversight of a corrupt political class while others point to how the interference of an un-elected judiciary undermines democracy. What do you think will be the likely implications of the Supreme Court’s decision on Pakistan’s fledgling democracy?

I think the judiciary has become a vehicle for an aspirational middle class that blames corruption for all the ills in the country. The shared consciousness and world view between the “New Judiciary” and this emerging segment of the society has created a formidable alliance that can act as check and balance to the traditional dominance of the executive in the country.

While this does shift the power from the elected civilian institution (parliament) to an un-elected civilian institution (judiciary), the critical bit is that it also wrests the role of the watchdog from the military and brings it in the civilian domain. This means that people are now looking up to civilian institution(s) rather than the military for accountability of executive power. At the same time and partially for the same reason, the unprecedented consensus on the continuity of the democratic system remains intact among all sections of the country which is a good sign for nascent democracy in the country.

Does the verdict herald the arrival of a truly independent judiciary able and willing to stand up to the political elite?

Rather than thinking of “independence” it is more pertinent to think on the changing nature of “dependence” of the judiciary. The judiciary in Pakistan during the last few years has relied on “people’s power” to get its verdicts implemented. It has consistently maintained high public approval ratings and has emerged as a power broker between various interest groups. It has also defused several crises such as 2014 protests against alleged election rigging and provided a mechanism for dispute resolution.

As examples in Latin America also show, in countries with weak political parties, an assertive judiciary does at times allies itself with powerful segments of the society. The judiciary will therefore retain its ability to stand up to the political elite as long as it is backed by the urban, educate, middle-class and there remains a conflict of interest between the political or even military elite and its support base.

The New York Times reported on “hushed speculation” that the Supreme Court had “the tacit, if not overt, backing of powerful generals.” What role do you think the military played in the investigation and the final verdict?

Questions were rightly raised on the inclusion of two officers representing military intelligence agencies in the JIT. Given historical distrust among the military circles of civilian elite in general and Nawaz Sharif in particular, it would not be surprising if military personnel at various levels supported the Supreme Court. It would also not be surprising if intelligence agencies shared information with the JIT and strengthened it as well as the court indirectly.

I, however, do not believe that the whole Panama affair and the Supreme Court proceedings were somehow orchestrated and scripted by the military as suggested by some. Rather, any tacit support would instead be a result of alignment of interests and shared world view on this issue.

Adnan Rafiq holds a PhD from University of Oxford in Politics. His doctoral research focuses on Judicial Independence in Pakistan. He is co-editor of a book titled "Pakistan's Democratic Transition: Change and Persistence" published by Routledge in 2016. He has also published scholarly papers in "Telecommunications Policy" and contributed op-eds to leading national and international publications such as Dawn, Express Tribune, Huffington Post, and Oxonian Globalist.