The Joint Investigation Team set up by the Supreme Court of Pakistan has put together its report on #Panamagate and the issue is again in front of the court, which now has to determine whether there’s enough in the findings for this matter to go to a trial court.
To recap, two judges on the original 5-member Supreme Court bench declared that Prime Minister Nawaz Sharif should be disqualified from office. He is still in office because the other three threw him a legal lifeline by essentially determining that while House Sharif’s story doesn’t hold, it is not yet an open-and-shut case and needs to be probed further to satisfy the requirements of a fair trial and due process.
The debate, since the JIT submitted its report, has been twofold: legal and political. [NB: there’s also the issue of the moral but we shall set that aside for now.]
On the legal side, just like the original bench’s split decision, there is also a split in the bar, depending on where one is standing. I mention it because, unlike those pressing for strict adherence to the legal-technical, some jurists think, like the two judges on the 5-member bench, that Sharif stands disqualified on the basis of obvious holes in the story and dissembling. Some, even if not vociferously opposed to Sharif and agreeing with the process and its technicalities, still think he needs to step down and can always come back if he is exonerated.
The question now is whether the SC will (a) exonerate the Sharifs; (b) assume the power of a trial court itself; (c) find that there’s enough in the JIT report to merit a trial by a trial court as determined by the SC. This is as far as the legal goes. Those arguing in strictly legal-technical terms stress, rather vehemently, that this is what it is and this is how it should and must be.
Problem is, there’s also a political side to this issue. The verdict there is already clear: Sharif is innocent, Sharif is guilty. The irony here is that while Pakistan Tehreek-e-Insaf chose to politicize the issue, and not without reason (the institutions that can investigate the matter and try Sharif are captured), the PMLN, instead of sticking to the legal, did exactly the same. From press conferences outside the SC and the Judicial Academy to TV talk shows, both sides have done everything to politicize and polarize proceedings.
The SC itself, having decided to judicialize the politics around the Panama Papers leak and belatedly act as the final arbiter, now walks a tightrope: if Sharif gets out undamaged, legally, the PTI will add the SC to its list of captured institutions. If Sharif gets damaged, legally, the PMLN will argue, as it has begun arguing more and more overtly, that it has fallen to a conspiracy hatched by unelected institutions that took advantage of the Panama Papers leak to do what could not be done in 2014.
All of this is of course on display 24/7. Points and facts are selected according to where one stands. And this is not just about the shrill noise on TV. Even the highly educated cannot, for the most part, be absolved of this, though their arguments have better grammar and more supposed nuance and sophistication.
The PTI crowd says Sharif is tainted and must resign. The anti-PTI crowd (pro-PMLN and others) says the process is still ongoing, Sharif has submitted to it, and, therefore, has no reason to resign. Also, says the PMLN, why single out Sharif. Err…well…because he is the P.M. and holding public office is all about public trust.
Let’s consider some basics. Is this a conspiracy against the PMLN? Did ‘hidden hands’ organize the Panama Papers leak and arrange the Pulitzer for the investigative journalists? Or, perhaps, no. They simply pounced on a fortuitous incident, a godsend. Maybe.
Problem is, and it’s a big problem, that that still doesn’t solve the problem of what the Panama Papers say about the Sharifs’ wealth and sundry other questions related to it. In other words, while X might exploit the circumstances arising out of leaked information about the supposed malfeasance of Y, the problem of Y’s alleged malfeasance still stands independently of X’s intentions.
No, hold on. This is not so linear. The issue is not just about Y. It’s about the system, democracy, which mustn’t be derailed. Okay. But that still doesn’t solve the issue of wealth. All it seems to imply is that while something might be rotten here, we must put up with the stench because if we didn’t, we are likely to fall into another ditch that stinks worse.
Sure, I can live with that argument. In fact, last year in April, I argued: “There are variables; too many, actually. There are also imponderables, which means we can’t be sure of the consequences of our actions. We are often called upon to make choices that are not about choosing between clear good and clear bad but between bad and worse. To modify the adage, the best is the enemy of good, in matters complex, good might just be the enemy of bad and force your hand into doing worse.”
But here’s the thing: why must we think, as I did last year, that we should throw Sharif a lifeline because while he may be bad, there’s worse awaiting us? Is it because the elephant in the room will take over or do we think that of all the bad political choices we have, Sharif is the least bad?
Recently, I was asked about the principal contradiction. Where does it lie? Would holding Sharif accountable mean the system would be purged of corruption?
In reverse order, no. It won’t be. Just like pushing Musharraf out hasn’t pushed the elephant out of the room. The principal contradiction, like everything else, is situated according to the framework one is using for arguing. Most importantly, it’s not a static concept. It doesn’t say much about the system if pushing out a tainted politician will bring the house down. Identifying Y with the system is just a shade this side of Louis XIV’s L’etat c’est moi.
Also, the issue has been taken to the SC by the opposition. The court is an institution of the state, the opposition parties are political parties that seek their political advantage in the same way the PMLN does. The PMLN is being disingenuous when it accuses Imran Khan of trying to grab power. Of course, he is trying to do that, just like the Sharifs want to cling to power.
In the same vein, Khan is being ingeniously disingenuous when he and his coterie talk about change and a corruption-free Pakistan. One look at PTI and one can’t help appreciate the old, pragmatic, steeped-in-the-system detritus from other parties. There’s nothing holy about Khan’s campaign. Nor should anyone with half a brain expect it to be so. His political strategy is to present Sharif as tainted, to get the process and the hype to keep Sharif bleeding and hope that the opportunistic Punjabi politicians who have turned opportunism to a fine art will jump ship.
As a very astute political economist and a friend put it, this is not Bastille happening, this is the War of Roses. The question is, does the system have the institutional capacity to find equilibrium or, more to the point, is it moving in the direction of finding the equilibrium? I don’t think so, at least not in the near-term.
For any thinking person to invest in the system, (s)he must see the system as worth investing in. Which is why two things are important: one, Sharif must get full due process because a system is as good as the rules of the game on which it is perched. Two, if the process finds him guilty, he must face the legal consequences. Put another way, the system argument must focus on the institutional compact instead of grounding itself in the person of Sharif.
For Imran Khan and his PTI, regardless of what happens to Sharif, the ultimate test will be elections, whether this year or the next. There’s no escaping that. It is one thing to score on TV shows and through the social media, quite another to capture the captured vote.
Haider is editor of national-security affairs at Capital TV. He was a Ford Scholar at the Program in Arms Control, Disarmament and International Security at the University of Illinois at Urbana-Champaign, and a visiting fellow at the Brookings Institution, Washington, D.C. He tweets @ejazhaider