As soon as the year 2017 dawns, the Supreme Court under a new chief justice of Pakistan would restart hearing anew the Panama Leaks case against the prime minister, while anti-terrorist military courts would complete their constitutional tenure. Both these developments would have far-reaching political and constitutional implications and most likely would add to the political crisis in the country as well as to the nature of the civil-military relations.
The Supreme Court under Chief Justice Saqib Nisar would restart the hearing of different petitions pertaining to the Panama Leaks. The outgoing Chief Justice Anwar Zaheer Jamali was tilted in favour of making a judicial commission to investigate the issue of the Panama Leaks in which Prime Minister Nawaz Sharif and his family are allegedly involved in illegal money transfer from Pakistan, to purchase huge assets in England. Now it remains to be seen what course the new chief justice would decide upon regarding the Panama Leaks issue — whether to constitute a commission or a new SCP bench. In case a judicial commission is set up, the final decision would take considerable time. Already the key political force, which has taken the Panama Leaks issue to the SCP—Pakistan Tehreek-e-Insaf—has announced that it would not accept the formation of a judicial commission on the issue. The PTI argument is that it has proven beyond doubt before the SCP that PM Sharif and his family have bought property with ill-gotten money.
On the other hand, PM Sharif seems to be under severe pressure due to his speech on the floor of the National Assembly in which he admitted that he had every document to show how his family bought the property in England and the money trail in this regard. However, taking a diametrically opposite stand before the SCP, the prime minister’s legal counsel submitted that his clients, the prime minister and his family, did not have any document to present before the august court. When asked by a judge of the SCP that then why had PM Sharif claimed in the National Assembly that he had all the documents, the counsel said the speech on the floor of the NA, by the prime minister, was “political” in nature without elaborating what “political” means to him or his clients. Obviously, by political the PM’s counsel meant making, at best, equivocal and, at worst, untruthful statements. Upon this, the PTI has also submitted a separate plea in the SCP accusing the PM of telling lies and thus liable to be disqualified under Article 62 and Article 63 of Pakistan’s constitution. The articles say that any person holding political or public office is liable to be disqualified if he is proven to have told lies or is held guilty of misappropriating public money. So the two parallel cases against the person of PM Sharif with a lot of substance would add to political chaos and as long the decisions on the two cases are delayed political mayhem in the country would aggravate. Arguably, if PM Sharif were to escape in the Panama Leaks case, whose chances prima facie are very dim, he may not evade the charges under Article 62 and Article 63. Thus the noose has tightened around PM Sharif. In case the prime minister is disqualified, it would result in a massive political crisis in the short term. In that case, there would be a grave threat to the present political, best-called, quasi-democratic dispensation in the country.
Insofar as the completion of the tenure of military courts established to try political suspects is concerned, reportedly the government has no plans to extend the time-frame of these special courts. Firstly, for this it would have to bring another constitutional amendment which may not be possible for it. Secondly, and more importantly, the Pakistan Muslim League-Nawaz (PML-N) government does not have any willingness to continue with the anti-terrorist military courts especially after the retirement of previous Army Chief General (R) Raheel Sharif. In order to try terrorism suspects, the government of PML-N, through the Law and Justice Ministry wants to establish special civilian courts. Reportedly, the identity of the judges of these special courts would be kept secret. If formed, these courts would be a step in the right direction because military courts are not the long-term solution for the problem. Moreover, their continued presence is a big question mark on the judicial system of the country. But it would have to be seen to what an extent the proposed civilian anti-terrorist special courts would dispense speedy justice. However, the military reportedly may want an extension in the life of military courts as the institution would like to take the issue of terrorism suspects to a logical conclusion. But as the PML-N has many skeletons in its cupboard due to association of many of his leaders with proscribed militant organizations, it would have several issues with the logical conclusion of bringing to justice all the terror suspects in the country. But the most important question, against this backdrop, is whether terrorism could be effectively contained through establishing special civilian courts and by ending existing military courts. This is the question to be addressed in the future.
Coming to the issue of the Panama Leaks, the probable disqualification of PM Sharif may not result in the change of face at the highest level if some family member or confidante of the prime minister steps into his prime ministerial shoes. The reason is that in case PM Sharif is disqualified in either Panama Leaks or under Article 62 or Article 63, all his cabinet may be disqualified as most of its members have been engaged in defending the prime minister in the said case relating to his person, not his public mandate. In this case the collective responsibility of the cabinet, which is an important feature of parliamentary democracy in any country, would have to be invoked by the apex court of the country.
In event of the disqualification of the PM, along with his cabinet, the constitutional way to manage the situation would be to call the next general election. This would be the safest way to have a sustainable democratic dispensation in the country. However, in this case too, there would be a problem of who would hold the elections. Because according to the constitution it is the outgoing government and the opposition within the parliament which would decide upon the composition of the caretaker governments at the federal and provincial levels. The political forces would not be able to come to a consensus on the caretaker government. The military would also be quite reluctant to oversee governmental matters and cobble together a caretaker set-up, lest accused of favouring some particular political force. In this situation, the role of the SCP of Pakistan would be extremely important. However, even the SCP may not like to play a role in excess of its constitutional mandate in this specific situation.
But if a consequent destabilization occurs, in such an eventuality the SCP and the military would have to play a role in order to save the system and the country. The constitution has identified the role of every state institution which it must not overstep. However, when it is a matter of state survival even adhering to the constitution becomes of lesser importance. In this case, an extra-constitutional (extra-constitutional not unconstitutional) measure would have justification.