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Mani Shankar Aiyar
Mani Shankar Aiyar

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Supreme coup

36-Nawaz Nawaz was forced to quit after the supreme court found him lacking rectitude | AFP

There is something dodgy about Pakistan’s highest court ousting Nawaz Sharif on a charge as flimsy as lack of rectitude. Yet, by respecting the verdict, Sharif has checkmated the army and has ensured that he retained his grip on the levers of power

  • Sharif himself may, for the moment, be history, but he continues to loom over the politics of both the country and its dominant province.

For the 15th time, an elected Pakistani prime minister has found his term aborted. Usually, it is the army that is responsible. This time, it is the judiciary. The supreme court has decreed that Nawaz Sharif is neither sadiq (truthful) nor ameen (honest), qualifications that in Pakistan are somewhat hilariously considered to be constitutionally indispensable to holding high office.

In popular perception, this is the playing out of Panamagate, the worldwide scandal that arose out of a host of media outlets, including The Indian Express, having been given a peek at papers leaked from a financial intermediary’s office in a country hitherto known only as somewhere through which a canal was cut to link the Atlantic and the Pacific oceans. It was also a country associated with drug running and dictators. After the leak, it has become a word synonymous with high-level corruption. To Sharif’s chagrin, the leaked papers included a bulky sheaf pertaining to his family. That provided the opening to Pakistan’s highest court to determine whether the federal government was in the hands of a man who reflected the high standards of character required of him by the constitution.

Oddly, the court’s verdict does not touch upon anything connected with the Panama papers. The sentence that debars Sharif relates to a Dubai company, Capital FZE, with which he is involved on a retainer of 10,000 dirhams (approximately Rs 1,75,000). Sharif defended himself by saying that he had not revealed this at the time of filing his nomination for the 2013 general elections because he had never drawn this remuneration. The court retorted that as he could at some time in the future have claimed this remuneration, his failure to declare this potential income amounted to an attempt to hide germane information from the public domain. The fact that he had disclosed billions of rupees in other assets, and was known to every elector as a staggeringly rich businessman, quite possibly the wealthiest in Pakistan, was not considered to be a mitigating or extenuating circumstance. Since he had not disclosed a sum of money he had never received (and might well have considered as petty cash) the sword of judicial wrath fell on him.

In India, disqualification follows the assumption of an “office of profit” while holding a legislative position. But holding such an office is not a disqualification if the post is held outside government; it applies only if the “profit” is received, or has been paid in the past, from the government treasury. When I was nominated to the Rajya Sabha in March 2010, rumour reached my ears that Arun Jaitley, then leader of the opposition in the upper house, intended to raise the question as to whether I had disqualified myself by not resigning from my earlier position of honorary adviser to the Bureau of Parliamentary Studies and Training before my nomination was announced.

While I thought the fact that the position was “honorary” would get me off the hook, the attorney general told me not to worry, the post was under the legislature, not the executive, and could not, therefore, be brought under the ambit of the law on “office of profit”, which related exclusively to posts under the government. (Jaitley himself never pursued the matter and told me he never had any intention of doing so). Therefore, the Pakistani law on the disqualification of elected legislators, in this instance, cannot be compared with the Indian law as a way of understanding the judgement of the Pakistan supreme court.

Commenting on the judgment, well-known Pakistani barrister, Salahuddin Ahmed, writing in Pakistan’s leading newspaper, Dawn, argues that whereas in corporate returns it is normal practice to indicate “receivables”, even if not received, and “expenses” when contracted for but not yet incurred in personal tax returns, the law requires the disclosure of only what has been actually received and, if expenses are claimed for deductions, of what has actually been spent (not to be potentially spent at a later date). Since, at the time of filing his nomination, and through the entire period of him being prime minister, Sharif had not received any income from this source, he was entitled to not describe as an “asset” his receivables from his position on the board of the Dubai company.

37-Shahbaz Family plan: Nawaz Sharif’s brother Shahbaz, who is expected to take over soon as prime minister | AFP

Salahuddin adds that as a lawyer himself, he has several clients who refuse to pay up. In his income tax returns, he does not disclose this income—due, but not received from defaulters. He only includes income actually received. On this analogy, is Sharif to be damned as “untruthful” and “dishonest” because he did not disclose a source of income from which a sum of money may have been due to him, but which he never received?

Another Pakistani commentator, Fakir Syed Aijazuddin, who is a chartered accountant, adds the dimension that company law requires that remuneration to a chairman or director be approved by the AGM (annual general meeting) before it is paid. Since the AGM of the Dubai company has made no decision on paying any remuneration to Sharif, he is surely entitled to not disclose, at the time of filing his nomination, the source of a future income that he might or might not actually receive.

There is, therefore, something dodgy about not only the judiciary’s finding of guilt, but also over whether the judiciary overstepped its jurisdiction in awarding such a harsh sentence on grounds of a lack of full rectitude. One is reminded of the Allahabad High Court judgment in the 1975 Indira Gandhi case (described at the time by The Times, London, as dismissing a prime minister for a parking offence) that brought on the Emergency. Is there a similar political crisis in the offing?

Hardly. Anticipating the possibility of the court pulling him down, Sharif arranged his political succession as smoothly as, one presumes, he has arranged for the transfer of his humongous assets to his successors after he passes on. He selected his faithful minister of petroleum (as a former petroleum minister myself, I can assure you they are loyal and reliable, quite sadiq and ameen!) to follow him in the interim while his brother, Shahbaz Sharif, long-time chief minister of Pakistan’s largest and most populous province, Punjab, completes the formalities to take over as prime minister. A family succession has also been put into effect without a hitch in the provincial capital of Lahore. Sharif himself may, for the moment, be history, but he continues to loom over the politics of both the country and its dominant province. Moreover, the next round of general elections is due a few months from now. And, as Scarlett O’Hara famously said in Gone with the Wind, “Tomorrow is another day”!

If Sharif had dug in his heels and refused to heed the supreme court verdict, a quite different scenario might have played out: a coup to bring yet another military dictator to the top. But whatever devious games the armed forces might have been up to (in collusion with the judiciary or otherwise), they have kept themselves in the background even as Sharif manages his own succession in such a manner that hitherto untainted (or, at least, unconvicted) members of his immediate family pick up the reins of office. There is no present reason or rationale or compulsion for the army to overtly take over. Of course, the army, as Pakistan’s largest undeclared national political party, will continue to be a decisive player in politics, especially on defence and national security issues, particularly relations with neighbours (especially India) and the major powers, but that is par for the course. Much may have changed for Sharif, but little has changed for India.

As for the Panama papers, the supreme court has merely referred those to appropriate authorities for “investigation”. We do not know what these investigations will uncover, but it would be fair to guess that they would come to the same conclusion that the Indian Supreme Court’s special investigation team arrived at on Prime Minister Narendra Modi’s role in the Gujarat pogrom of 2002: that the evidence secured is “not prosecutable”!

38-Shahid-Khaqan-Abbasi Working arrangement: Shahid Khaqan Abbasi, who has been elected as interim prime minister till Shahbaz takes over | AP

Also, going by the snail’s pace at which—both in Pakistan and India—crimes are investigated and prosecuted, it would be reasonable to assume that nothing of substance will happen before the 2018 general elections are upon Pakistan. Imran Khan has been handed a splendid whip to flay his principal opponent. But does the Pakistani voter care—any more than the Indian voter cares—about corruption charges? After all, eight of Modi’s cabinet ministers and two ministers of state have admitted to criminal charges pending against them in affidavits filed at the time of contesting the elections. Yet, they won. Why should Pakistan be any different?

The widespread belief in Pakistan is that corrupt and criminal representatives are preferable to having self–declared sadiq and ameen military men wandering the corridors of political power. So, my best bet is that while Panamagate might make for headlines, it is not going to disrupt Pakistan’s desperate efforts to evolve into a credible democracy, warts and all.

As for us in India, Sharif’s departure may perhaps have closed what little opening there was for a resumption of the India-Pakistan dialogue that Modi has so effectively stalled. And it would be an illusion to hold out any hope of current tensions being eased by his younger brother taking over. Therefore, as much for India as for Pakistan, nothing changes. We are where we were, in a cul-de-sac.

Instead of being smug and sententious about everything that happens in Pakistan, we should be working on ways of initiating an “uninterrupted and uninterruptible” dialogue with whoever is in office in Pakistan. The alternative is of fanatical religion-drugged terrorists, backed or not by the “deep state”, determining the India-Pakistan agenda. We have rendered ourselves hostage to the worst elements in Pakistan, forgetting that in two successive and wholly democratic elections in Pakistan, spread over close to a decade, all mainstream political parties pledged themselves to seeking better relations with India and eschewed making Kashmir a make-or-break issue—with the exception of the Jamaat-e-Islami. And the Jamaat was rewarded both times with just two seats. Instead of prejudice and bias, it is a hard look at Pakistan’s ground reality that should guide and determine India’s Pakistan policy. Pakistan is a kinetic enemy, but a potential friend. If only we had the courage to talk to them instead of inflicting on them our television anchors.

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