Daily Times

If we truly wish to understand the institutional motivations behind the judgment – and not merely make the judiciary a target of our indignation and exasperation – we must start by understanding the Panama Case as a ‘mega political case’

The split 3:2 Supreme Court verdict in the Panama Case against the immediate disqualification of Prime Minister Nawaz Sharif has dashed many an expectation. And unsurprisingly, those who were expecting, or at least hoping, for an adverse decision against Sharif are readily hurling highly emotional barbs at the apex court for letting the nation down. But, if we truly wish to understand the institutional motivations behind the judgment – and not merely make the judiciary a target of our indignation and exasperation – we must start by acknowledging that the Panama Case is what scholars and political analysts around the world would describe as a ‘mega political case’. Meaning that it invites judicial ingress into questions that are ordinarily the exclusive domain of political communities, such as making and breaking governments, and disqualifying elected representatives. The analytical distinction between ‘mega political’ and ordinary cases is not just descriptive – it underlines an important point about the different set of incentives judicial institutions face when deciding cases as proxies, so to speak, for the democratic political process.

We would be deceiving ourselves if we did not recognise that ‘mega political’ cases, much more so than the general run-of-the-mill cases, are hyper sensitive to broader power structures and institutional relations. Far from being decided in a political vacuum or on the basis of some abstract notion of judicial independence, they respond to distinct factors: like self-preservation and self-legitimation of the judiciary itself (which is sometimes though not always linked to public legitimacy); historical and actual support from other politically powerful institutions and players (such as the government, military, political parties, even the legal bar); power relations among these exogenous institutions and hence the immediate likelihood that the judgment will be enforced; and the political cohesion of the incumbent government. The individuality of judges, both in their political preferences and in their assessment of the purely legal merits of such cases, is generally a relatively minor factor in this bigger picture.

Viewed through this historical-sociological lens, the majority judgment in the Panama Case is a politically logical judgment. The thrust of the judgment is a balancing act between the Supreme Court’s institutional self-legitimacy on the one hand, and political stability on the other.

To begin with, the Supreme Court’s decision has come in the context of a politically entrenched, majoritarian government, and there is nothing to suggest that next year’s elections will not return the current incumbents to power. The Panama Case has few parallels, if any, with the judicial ouster of the erstwhile Prime Minister, Yousaf Raza Gilani, in 2012. That was a scenario of a brittle coalition government faced with a judiciary emboldened by the lawyers’ movement. Neither has there been any indication that the military, under its recently appointed Chief of Army Staff, would be inclined to buttress a tough judicial decision that would not only send the premier packing but could possibly stir snap elections on the heels of a much-delayed national census requiring enormous pre-electoral preparation by the Election Commission.

The majority in the Panama Case – comprising Justices Azmat Saeed, Ejaz Khan and Ijazul Ahsan – has thus deflected the political question of the disqualification of the Prime Minister by forming a wide-ranging joint investigation team (JIT) that is to investigate and clarify the many contradictions, ambiguities, and holes in the case in order for the Court to make a final determination of liability in the coming weeks. From the judiciary’s perspective, this approach has the advantages of relieving immediate pressure on the Court, multiplying the institutions and actors that must share the burden of the eventual decision, and perhaps altogether evading a final resolution of the matter through strategic delay. Moreover, the majority has cautiously divided the political question of disqualification from the question of criminal liability, keeping open the possibility of both eventualities but also ensuring that the former does not necessarily follow from the latter. At the same time, however, the Court has used a language of condemnation, not condonation, for the Prime Minister – signalling that the contestation remains alive. The two dissenting notes of Justices Asif Khosa and Gulzar Ahmed are a positive sign of growing plurality within the Court. Nevertheless, such drastic opinions always have a very low likelihood to sway the majority in the absence of a larger political stimulus.

The problem, ultimately, is not that the judiciary as an institution is spineless or politicised (though one might justifiably say that about individual judges on occasion). Our Supreme Court is much more autonomous today than at any other time in our history – in fact much too insulated from legitimate political accountability and much too eager to jump into political controversies. The problem is that we have come to expect radical changes from an institution that is, by its very nature, conservative – conservative in the sense of being averse to political reversals and upheavals, especially in the absence of a realistic enforcement mechanism.

That is not to say that the Supreme Court should be applauded for its handling of the Panama Papers controversy. If anything, the apex court ought to stop wasting precious judicial time and put its autonomy to better use, like facilitating rather than resisting reform of the country’s dysfunctional court system. What the verdict does point to is that we would be better off taking the long road to strengthening our institutions, supporting and respecting the democratic process, and exercising our political rights to strategically engage with the imperfect and messy world of politics instead of relying on judicial institutions to judge the fate of our governments.

The writer is a Visiting Research Fellow at the Institute of Development and Economic Alternatives (IDEAS), Lahore. She may be contacted at: maryam.khan@ideaspk.org