Intra-elite conflicts

Legal eye

Intra-elite conflicts in polities subject to elite capture can be great news for ordinary folk if they come with a promise of shaking things up and introducing systemic changes. Is Panama capable of doing so?

From one perspective, the Panama soap opera produces no hard choices. The Sharifs are public officeholders. If they or their kin live beyond their known sources of income or fail to account for their assets, they must be held to account without ifs and buts. No principles can be served by defending the indefensible. And dirty money is indefensible.

There is nothing praiseworthy about the PM’s ‘decision’ to appear before the JIT. He had no discretion in the matter. He was required to do so under an order of the Supreme Court (that saved him from immediate disqualification), which is being implemented by the JIT. But there are some noteworthy aspects of this event.

Legal equality is still not an accepted norm in Pakistan. All citizens are promised equal protection of the law by our constitution. But the law doesn’t treat citizens as equals – some are more equal than others. And this intra-elite conflict won’t change that. Imagine if while hearing Iftikhar Chaudhry’s case, the SC had constituted a JIT to investigate circumstances in which the chief justice had been removed and locked up in his home. Imagine Musharraf being summoned and interrogated by a JIT comprising brigadiers or – God forbid – even civilians.

Let’s not even imagine things. Let’s recall a high court ordering Musharraf’s arrest and the general being whisked away with no one daring to carry out the order; his palatial farmhouse being declared a sub jail; his motorcade being diverted to a military hospital so he didn’t have to appear before a court. Let’s recall the gripe of our guardians at the time: that a general is being humiliated by being dragged before the courts for subversion of the constitution and that such accountability is unacceptable, being inimical for the morale of the troops.

Why is critique or accountability of a general a national security concern, but the accountability of a civilian prime minister the triumph of rule of law?

All hell had broken loose in Pakistan over the effort to hold a general to account for subversion of the constitution and for his orders (not attempts) to disband superior courts and lock up judges and their families. The general now sits (or dances, no pun!) in foreign lands and pontificates about how the judiciary backed by the military should throw out the Sharifs in the larger interest of the country. It is quite extraordinary that very few feel the need to uphold the majesty of the law when it comes to a Musharraf or even the ‘missing persons’.

This is not to say that the Sharifs should also be meted exceptional treatment. It is just a reminder that intra-elite conflicts don’t always promote principles or public welfare. They often expose the hypocrisy of the legal order where the more powerful elite groups use the law and its processes to entrench their power. Within the elite, some elites are more equal than others. Thus when public representatives join the elite club and relish and retain its exclusivity, they can’t expect sympathy if their noses are rubbed in dirt by more powerful elite groups.

The moral argument against the Sharifs (effectively made by Imran Khan that a PM should have the dignity to step aside when under criminal investigation) is valid. But in our politics, moral accountability is often confused with electability. The flawed argument is that if a person stands elected by the people, such public mandate washes clean all crimes and dirt. And the legal principle that everyone be deemed innocent until proven guilty is then used to obfuscate the inner reflective nature of morality, which is not contingent on guilty verdicts.

But it is not due to the PM’s failure to undertake moral self-accountability that he is being shamed. He is being shamed for having to appear before the JIT on the basis of an honour code that views ordinary treatment being meted to elites as a source of dishonour for them. Exceptional treatment for Musharraf was sought pursuant to such code, which is also what encourages us to view with derision the need to stand in line for one’s turn. Our abusive thana-kachehri culture is rooted in this code and so is our system of patronage designed to provide respite from thana-kacheri.

It is within this context that the need to leak Hussain Nawaz’s photo can be understood. The loyalties of Punjab are fickle when it comes to state patronage and power. Where is the PML-Q that was all-powerful from 2002 through 2008? The levers of power and legal processes (remember the ‘across-the-board’ accountability drive by NAB) were used to signal back then that power was to be handed over to the PML-Q. Everyone fell in line. Punjab is good that way. It doesn’t take too much to encourage it to make smart choices.

The message Punjab might glean from a PM being dragged before the JIT (comprising officers in pay grades who wouldn’t otherwise have audience with the PM) is that in this intra-elite war the dominant power group has decided to rub the three-time PM’s nose in dirt. What this also means is that if it were up to the dominant power group, it would not like to see Nawaz Sharif as a historic fourth-time PM of Pakistan. In the context of elections, such signalling can be more effective than judicial verdicts.

Within the context of Punjab’s ‘dharna’ politics it is clear to most that the only viable platform for challenging the PML-N in Punjab is the PTI. (Of course, that also has to do with the fact that the PPP has simply lost the plot). From Raja Riaz to Firdous Aashiq Awan, the electables know the direction of the wind. Seasonal migrating species (that hadn’t already joined the PML-N) are flocking towards the PTI. The question is: will the JIT process (with the ignominy and the signalling it brings along) damage the Sharifs enough to encourage electables within the PML-N to split?

The Panama matter has dug, done and dusted skeletons out of the Sharif closet. It has brought back to life the Hudaibiya Paper Mills matter and the Ishaq Dar affidavit. If the Sharifs and their politics isn’t a past and closed transaction, why should these matters be if they weren’t decided on their merits? Did the Sharifs manage legal processes in the past? If they scream double jeopardy and claim immunity against a re-probe, as opposed to providing full disclosure, shouldn’t people drawn the adverse inference that they have much to hide?

That the Sharifs are being asked to account for assets they own and acknowledge is no reason to feel sympathy for them. But this doesn’t mean one ought to be ignorant of how principles are selectively employed and narratives shaped in intra-elite conflicts that are about power and not principles, or the consequences such conflicts are likely to produce. Who knows what the JIT will say in its report or what the SC will do with it. But one thing is certain: during his remaining term in office, our third-time PM will remain consumed by a fight for his survival.

Let’s assume that NS miraculously survives Panama and somehow also manages to get re-elected, what lessons would he draw from this episode? Would he come back to Islamabad in his fourth term with a renewed zeal to hold military usurpers to account or make peace with India or expand the circumscribed domain of civilian authority? It is received wisdom that only those with superior moral authority can take on more powerful adversaries. To think that politicos with a compromised past can fix our civil-military imbalance is a pipedream.

The writer is a lawyer based in Islamabad.

Email: sattar@post.harvard.edu