SADF COMMENT 1 August 2017 An assessment of the latest premature end Issue n° 97 of ’s prime ministership ISSN 2406-5617

Dr. Siegfried O. Wolf is the Director Dr. Siegfried O. Wolf of Research at the South Asia Democratic Forum and Senior Researcher at the South Asia Institute, Heidelberg University . It happened a third time! Nawaz Sharif, the Prime Minister (PM) of

Pakistan, got ousted from office. On 28 July 2017, the country’s Supreme Court (SC) unanimously disqualified Sharif as member of the national parliament and, in consequence, Sharif resigned as the country’s Premier. The judges deemed the PM of being unfit for public office. The five members of the country’s highest bench ruled that the PM had not been ‘honest’, which is a prerequisite for the eligibility for membership of the national parliament — and subsequently for the chief executive’s office — as enshrined in the Articles 62 and 63 of Pakistan’s Constitution. It was argued that Nawaz did not disclose to the national parliament and the judiciary his employment (and related monthly income of $ 3000) in the Dubai-based Capital FZE company in his nomination papers for the 2013 general elections. Ostensibly, the disqualification verdict was based on a Joint Investigation Team (JIT) report on corruption allegations, forgery of documents and conflicting statements involving his family in the context of the ‘ case (Panama gate)’. It is interesting to note, that the apex court dispatched nearly all of the allegations listed in the JIT report. In fact, Nawaz was brought down just by a technicality that he not sufficiently laid out that he received a work permit (Iqama) for the Avenue des Arts 19 (UAE). Subsequently, critics describe the court 1210 Brussels proceedings as a violation of the ‘principles of a fair trial’, even as a [email protected] ‘judicial coup’. www.sadf.eu Cyril Almeida, assistant editor at the Pakistan based newspaper Dawn, describes the judgement as ‘confounding, appalling in argument and scope’. Furthermore, some observers emphasise that the PM’s ousting is based on politically motivated charges and weakened democracy. Nevertheless, besides the questions over the legality and justification of the SC’s verdict, the following assessments regarding Nawaz Sharif’s disqualification and its political ramifications can be made:

Nawaz Sharif will maintain most of his political leverage The decision of the SC brought not only Nawaz premiership but also a legal and political limbo to an end. The latter phenomenon gains momentum earlier this year due to the courts split vote from 20 April 2017, resulting in the establishment of the JIT. The subsequent pending consideration of the disqualification of the PM made not only Nawaz Sharif’s political future precarious but also hampered the functionality of his government. As it seems, Nawaz Sharif’s career as elected office- bearer comes to an end, at least for the time being. But taken into account that the country’s most significant province, Punjab, which is under firm control of the Sharif family, he will continue to be a political heavy weight. Not only is Nawaz brother of Shahbaz, Punjab’s powerful chief minister, but the Sharif dynasty was also able to build up a powerful and intricate network of feudal-like patron-client relations based on the so-called biraderis or brotherhoods and clan networks possessing a strong sense of identity and personal codes of behaviour from the top to the bottom of all levels of the provincial administrative system. This dynastic structures ensure the control of Nawaz’s family over the Punjab. Being entrusted with such a mighty stronghold, he will not only retain most of his previous political power, but will also exercise his influence from behind the scenes. In technical terms, despite being disqualified as PM, he will remain head of his political party, the Pakistan Muslim League-Nawaz (PML-N), the ruling and largest party in the National Assembly. In consequence, he is able to decide on the nomination of his successor and any candidate from the opposition will have most likely no chance at all. The fact that Sharif chose his brother Shahbaz as a potential next prime minister and made sure that former petroleum minister

Shahid Khaqan Abbasi got elected as interim prime minister, until Shahbaz becomes eligible.1 This can be seen as a clear indication that Sharif is not willing to give up his decision-making power and

1 He still needs to gain a seat in the national parliament via a by election. ______SADF Comment N.97

2 role in the political arena of . In order to justify his informal influence, Nawaz will most likely work on his image as ‘martyr of democracy’ and as being victimised for fighting for civilian supremacy. For the sake of completeness, one must mention that the SC has also directed the National Accountability Bureau (NAB), Pakistan’s main anti-corruption agency, to continue the investigation against the Sharif family. Until now, no leading civilian politician or member of the military leadership had to face severe consequences based on the NAB proceedings, however, it still could create further challenges for Nawaz and/or his potential heir.

Loss of democratic dividends due to Sharif’s authoritarian leadership style Old habits die hard! It seems that Nawaz Sharif did not learn a lot from his earlier experiences as PM. In his first two tenures, from 1990 to 1993 and from 1997 to 1999, the civilian governments under Nawaz Sharif had the opportunity to consolidate their efficient power to govern and improve the quality, effectiveness, and ethos of the political and administrative institutions in Pakistan. It is crucial to point out that the civilians at that time had the chance to establish institutionalised civilian control over the armed forces. Especially during Sharif’s second tenure when he was entrusted with substantive power. Being endowed with a two-third majority in the parliament, Sharif immediately repealed the 8th constitutional amendment which was identified as the military ‘Trojan horse’ within Pakistan’s constitutional framework to exercise political power via the President. Furthermore, to reduce the option for the military to weaken his parliamentary position, he passed the 14th constitutional amendment in 1997, taking away the rights of the members of the assemblies to vote with whichever political party they wanted (anti-defection or horse-trading). It appeared that Sharif changed the political structures favouring an army-backed president and disadvantaged the civilian government. The fact that the Prime Minister was able to discard the President, the Chief Justice as well as the Chief of Army Staff (COAS), seemed to indicate and mark a significant power shift within Pakistan’s civil-military relations. But Sharif replaced these three positions with his own favourites and hence provoked much criticism that emphasised the increasingly authoritarian tendencies of the government. Due to his consequent unrestricted search for absolute power, Nawaz weakened the political institutions, especially the judiciary. Sharif, with his narrowly based and personalised decision-making style, alienated most of his civilian allies in the provinces, leading to regional political destabilisation and violent conflicts. Both made his government more dependent

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3 on support from the military which subsequently gained more political influence. In consequence, Sharif was two times removed from the prime minister’s office. For the first time, he was dismissed by then President Ghulam Ishaq Khan in 1993. Despite the fact that the SC at that time declared the PM’s dismissal as unconstitutional, Nawaz resigned under pressure of the army’s top brass. The second removal from the office was done through a direct military invention as COAS General staged a coup d'état in 1999 against Sharif’s government.

After experiencing years of direct and semi-direct military rule, Musharraf gave up the post of COAS and continued to rule the country ‘only’ as ‘president without uniform’, economic decline and increasing political turmoil led to Musharraf’s disempowerment and it seemed that the trajectories in Pakistan are in favour of civilian rule. Subsequently, there were many promises and hopes in the 2013 election year in Pakistan. The first democratic transfer of power from one elected civilian government to another was largely celebrated as an event which could determine the critical juncture in order to change unfortunate traditional patterns in Pakistani politics. In other words, the elections were interpreted as the most crucial step towards a democratic transition. Undoubtedly, the 2013 general elections, which brought Sharif back into the PM’s office for the third time, were a milestone in the country’s chequered political history. The Pakistani people witnessed several coups d’états, military dictatorships, elected governments with strong authoritarian tendencies, or military controlled civilian regimes. Until then, the Pakistani people had never experienced the regular ending of the tenure of a civilian administration which subsequently led to free and fair elections without any derailment or disturbances that have been induced by Pakistan’s omnipresent security apparatus. There was much talk among the observers during the election process about several positive signs that indicate that the country is finally making its transition towards democracy. Statements by the military leadership to stay out of politics; the country’s successful first steps in coalition politics; more professionalism within the political parties; the passing of several major bills through the national parliament; significant constitutional amendments; the way in which demands for an extra-judicial technocratic caretaker government were ruled out (‘Qadri challenge’); and finally the rise of , a cricketer-turned politician who leads the Pakistan Tehreek-e- Insaf (PTI), an influential opposition party which is popular among the educated urban youth. Khan got portrayed as someone deemed to be fit for preventing the downward spiral of the nation were

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4 seen as clear indications that the country was finally ready to join the league of democratic countries.

But the latest decision of the SC to disqualify Nawaz Sharif is the most visible expression that there is not much left of the democratic enthusiasm of 2013 and Pakistani are getting once again confronted with the political realities on the ground. Frankly speaking, the current situation looks like a déjà vu of the 1990s. Whenever he has a chance, Sharif turns his back to his style of governance which is determined by the following features: leadership characterised by an extraordinarily high degree of personalisation with a strong focus on a few selected and loyal persons; endemic nepotism; centralisation of power in the PM’s office where everything is under the direct control of Sharif; lack of trust and disempowerment of his cabinet; and side-lining of the parliament, despite the fact that the constitution is preparing for the parliamentary democracy. In sum, instead of strengthening civilian institutions and democratic processes, Sharif once again followed the patterns of politics that are much responsible for the country’s bad governance, despite some improvements in economic growth during his latest administration.

Semblance of institutional strengthening and ‘separation of power’ The legal experts were divided on the basis of whether the SC could disqualify the PM or not. Here, claims are made that disqualifications of parliamentarians do not fall under the top court’s purview since the former is not a ‘trial court’ and, most significantly, because no Pakistani court is entrusted by the constitution to do so. In other words, there is a ‘legal trench war’ between the judiciary and legislative regarding the issue of who is entrusted to interpret the fundamental principles of the constitution in general and who has the right to disqualify members of the parliament in particular. For examples, there is no clarity how to codify the constitutional notion of ‘being honest’, which initiated the downfall of the prime minister. Additionally, there is much confusion among the constitutional commentators if a person can be disqualified for membership of parliament for life. The latter question appeared since the SC has not specified any period of time for Nawaz disqualification, which can be interpreted as lifelong. Interestingly, Nawaz is not the first PM who got disqualified as a member of parliament by the SC. In 2012, the then PM Yousuf Raza Gilani had to face a ‘similar faith’ due to his refusal to comply with SC in order to reopen dormant fraud

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5 investigations known as the Swiss case against the former President . In this context, it is interesting to note that in contrast to Nawaz, Gilani was disqualified ‘only’ for a tenure of five years. Such a disparity between the two verdicts added to the persistently appearing speculations about despotism and ‘judicial dictatorship’ of the country’s highest bench.

However, from an institutional perspective, the SC’s judgement strengthens the notion of ‘separation of powers’ between the judiciary on one side and the executive and legislative on the other. It therefore emphasises the recognition of democratic principles. As such, the verdict can be seen as an attempt of the judiciary to establish itself as a relative independent element of the country’s institutional setup. But this comes with a price as Pakistan will once again not be able to witness an elected prime minister to serve out a full term, and it is thus doubtless that another blow towards the consolidation of democracy in the country will become a reality. Moreover, one should be aware that the judiciary has its very own history and, more importantly, agenda which is featured by a ‘traditional affinity’ between the judges and the soldiers.

No disruption of the CPEC implementation There were reports that China exercised influence over the Pakistan military to avoid any situation which could lead to political chaos in the country and disrupt the largest Chinese development initiative in the country, the so-called China-Pakistan Economic Corridor (CPEC). One can state that due to CPEC, Beijing has a growing incentive in getting involved in Pakistan’s domestic politics in order to ensure the safety of its companies and workers as well as to achieve legal and political cover for its projects and investments. The fact that most of the CPEC capital is provided by Chinese sources gives Beijing the necessary leverage to interfere in Pakistan’s internal affairs. The Chinese demand to solve the legal-constitutional limbo of Gilgit-Baltistan is just one example. Regarding the Panama gate and the subsequent JIT report against PM Sharif, one can only state that China is keen on avoiding any situation which creates further political instability. In which concrete way potential Chinese intervention will appear, remains to be seen.

Otherwise, besides the speculations over Beijing’s involvement, the argument was made that both the Panama gate and Nawaz Sharif’s disqualification are parts of a conspiracy against CPEC. But

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6 this is a severe misreading of the political dynamics and decision-making powers regarding this development initiative. Against this backdrop and despite all critics, any indications that the SC’s verdict has the intention of initiating a ‘judicial coup’ against the then PM Sharif is a further step towards the undermining of the civilian institutions, foremost the judiciary represented here by SC. Furthermore, such statements are creating the conditions in which the endemic corruption among the ‘establishment’, both civilian and military, can further flourish without the fear of concrete prosecution and subsequent punishment. If the culture of impunity for criminal activities does not get stopped, Pakistan will struggle to ensure the smooth and effective functioning of CPEC. One has to be aware that if the country would have more transparency and accountability in political decision-making and their respective implementation in general, as well as an effective system of taxation and the habit of paying electricity bills (just to mention two concrete examples) in particular, the country would be not in such a desperate need for foreign capital. If these basic challenges are not addressed, many CPEC projects, especially in the energy sector, will not be sustainable and will thus add to the external debts in an unprecedented manner.

Final thoughts: The PM’s resignation, democracy, CPEC, and the army’s covered direct rule The disqualification of Nawaz Sharif as member of the parliament and his subsequent resignation as Prime Minister of Pakistan will have no severe impacts on current domestic politics and foreign affairs, particularly not on the continuation of the CPEC implementation. However, it will definitely determine another setback in Pakistan unhealthy civil-military relations and the strengthening of military influence over CPEC. Since the launch of CPEC, the army was able to increase tremendously its formal role within the country’s political-administrative institutions on the expenses of the civilians. Here, the establishment of the so-called Apex Committees (ACs) at the federal and provincial levels, combined with a lack of parliamentarian oversight by the national and provincial assemblies, seriously hampers decision-making power of the government. In other words, most of the important decisions related to CPEC are made by this military-bureaucratic hybrid; enhancing civil-military interaction to improve the security situation in general and to counter terrorism in particular. In this context, the initial purpose of the ACs was to coordinate security-related efforts and implement the National Action Plan (NAP), a programme which was

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7 drafted jointly by the government, the parliament and the army to combat terrorism. While the initial official function of the ACs relates to the institutionalising and legitimising of the process of decision-making via consultation between democratically elected authorities and the military, it is obvious that the supreme authority relies on the army when it comes to the most crucial issues. Over time, the ACs have become more important decision-making bodies than the federal and provincial cabinets, assemblies, as well as specialist civilian institutions. This is evident from the fact that federal and provincial cabinets meet less frequently, compared to federal and provincial ACs. Sharif’s preference for monopolising power happens at the expense of all other political institutions, foremost the cabinet and the parliament, made the strengthening of the ACs easier. Instead of including the elected representatives of the people, Sharif relied on the bureaucrats in running the ministerial affairs. As such, he continued the process of undermining the internalisation of democratic procedures, norms, and values within the country’s political-administrative institutional framework. In practice, this means that Sharif did not use the cabinet to exercise power. This increased the overall acceptance that that decision-making is done in other forums outside the given institutional structures and processes provided by the constitution, namely the ACs. In addition, Sharif’s strong tendency to sideline the parliament added further significance and influence to the ACs. In consequence, Sharif continued with the traditional approach of Pakistan’s executive to turn the legislative into a ‘rubber stamp’ body. Generally speaking, the activities of the national parliament and provincial assemblies were more a matter of formality than of any substantial contribution to the political process. Being reluctant to strengthen the role of the parliament in the political decision-making, it is no surprise that the whole executive body that is supposed to be accountable to the parliament is not taking the parliament as a place for political debate and decision-making seriously. As a result, the deliberately downgrading of the parliament as well as the cabinet into bodies for briefing and ratification as well as exclusively formal political ownership, created a power vacuum which got filled by the military through the ACs.

Today, the ACs are not just dealing with security issues, rather they function as core institutions dealing with the implementation of all kind of CPEC related projects. In sum, the ACs essentially merges the military formally with the civilian government, it enhances their role in administrative management and strengthens the soldiers position in all decision-making areas relating to CPEC

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8 and beyond. This phenomenon got further enhanced by the establishment of military courts (21st constitutional amendment), which provided the soldiers with additional judicial power.

Having this in mind, one can argue that the whole Panama gate, especially the composition of the JIT which included the top brass from the security sector, is just another case how the military was able to strengthen its formal role in the country’s institutions. Therefore, despite the extraordinary political uncertainties coursed by the resignation of Sharif, there will be no change in the CPEC implementation process. The same counts for all other relevant domestic politics as well as foreign affairs, especially towards India. To sum up, it remains to be seen if the resignation of Sharif as a consequence of the SC verdict might serve as a signal against corruption, but it will definitely path the way for a greater formal, institutional role of the army in the country’s politics. In essence, the latest premature end of Sharif’s stay in the PM’s office determines another grim sign for the future of democracy in Pakistan.

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