27 April 2017

Pakistan’s Reluctant Constitutionalism

Not too long ago, a middle-aged Pashtun guava seller in one of Lahore’s upscale markets, dressed in what cosmopolitan fashionistas will eventually appropriate as Taliban street-chic, whispered to me in confidence that the only thing that could torpedo Pakistan’s phenomenally corrupt prime minister Mian Nawaz Sharif was the Supreme Court. This was surprising. Even at the turn of the century, only a handful of Pakistanis would have betted on the emergence of the Supreme Court as a serious institutional player against the executive branch, in one of these theatrical standoffs Carl Schmitt feverishly anticipated with the captivating German compound word Ausnahmezustand.

Traditionally, institutional opposition to the government has been the forte of the armed forces. In the decades since Pakistan’s rushed inception in 1947, the military establishment repeatedly cut short her democratic pretensions. For once, however, the government’s fear was not sparked by such predictable military interventionist lust. It was ignited by the Supreme Court. On 20 April 2017, the court ruled in one of the greatest cases in its turbulent history: the impeachment of the prime minister for involvements in shady financial dealings that bubbled up after the Panama Papers. Nothing happened; the court only showed Nawaz the yellow card. But while Pakistan narrowly missed her constitutional moment by a single judge’s vote, the court’s ruling displayed a democratic maturity that would have left Hans Kelsen breathlessly write to Schmitt about: Geehrter Herr Professor Schmitt, the court performed as the guardian of the constitution!

The Panama Papers, leaked in 2015 by the mysterious whistle-blower ‘John Doe’, who some conspiracy theorists contend is just one of Banksy’s latest prank projects, stirred up third world countries more deeply than developed ones. In Pakistan, the papers reverberated as the single most important issue in public debate, right after the Cricket Super League, the Coke Studio discovery Momina Mustehsan, the ageing Bollywood hero Shah Ruhk Khan, and, you guessed it, the surge in onion prices. The prime minister’s 43-year old daughter, Mariam Safdar, was implicated directly in dodgy money transfers from Swiss bank account to off-shore companies. With exotic names like ‘Nielson’ and ‘Nescoll’, Safdar’s off-shore empire was clearly the bureaucratic wet-dream of a colourless Caribbean legal clerk at Mossack-Fonseca.

After intense media scrutiny, Safdar acknowledged that she owned a few cosy apartments in London’s prime location––Park Lane overlooking Hyde Park––but she fiercely maintained that the money was sourced legally from the explosive success of her family’s business ventures in Saudi Arabia. The excuse for going off-shore that Safdar presented to the Pakistani public was the same the icon of white feminism Emma Watson sought refuge under when confronted with her entanglements in Panamagate: privacy––a novel catch-all legal sledgehammer. Both women would agree that off-shore companies are complicated and messy, but ultimately argue that they open legitimate paths to protect one’s privacy. As a satirical headline in The Onion inflated brilliantly: to safeguard privacy concerns, the public should just trust the world’s most powerful leaders to punish themselves accordingly.

The Sharif clan’s financial success coincided with Nawaz’s first victory in the 1993 general elections. There are barely any dots left connecting. But since a substantial part of the money was distributed democratically amongst far-flung baraderi networks, the many beneficiaries of the corruption pie have repeatedly secured the MLN vote from Pakistan’s economic and cultural backbone, the Punjab province.

The swagger with which the senior judge Asif Saeed Khan Khosa, a mediocre textualist with book titles like ‘Judging with Passion’, poked into Nawaz Sharif’s financial infidelity has been the stuff of much media chirping. Citing Puzo’s Godfather in his resort to the quantity-over-quality novelist Balzac, that behind every great fortune lurks a greater crime, Asif Khosa, put his own cook-book advice to legal writing into practice. But despite these references to middle-brow popular culture, leftovers of Khosa’s late 70s Cambridge education, it was a breath of fresh air, that two judges in diverging opinions articulated what many Pakistanis had in mind: how some of that sweet off-shore money could be activated to bring down onion prices, or more generally be used for the greater public good.

While the court’s high standard of vetting evidence left Nawaz Sharif temporarily untarnished, the diverging-opinion-holders vented that Nawaz had lost the constitutional backing for his mandate. More than just a bruised eye, the ruling may open a clay pot of poisonous scorpions for Nawaz Sharif. After tedious reconstructions of who-said-what-when, the court concluded that there was evidently something fishy in Nawaz’s financial operations; alas, they were lacking the final piece of the puzzle to knock him out of his position.

Pretty much like Donald Trump, Nawaz brazenly puts family members into high administrative positions. Unlike Trump, however, much of Nawaz’s continuation to rule rests on the legally verifiable uprightness of his moral character. As a constitutional amendment, the character suitability clause for Pakistan’s highest office holder is enshrined in Article 62 (1) (f), added during the great Islamisation chess game of the long 1980s, under the vague term ‘ameen’ (honest or upright). Anthony Weiner would have had a much harder time canvassing for a political comeback in Islamabad, even with the support of Huma Abedin.

But how did semi-Islamic categories like ameen find such a prominent place in Pakistan’s constitution? Those who bemoan the golden days of Pakistan, when it was possible for her English-speaking elite to slurp mango-lassis in the lush gardens of Lahore’s five-stars unburdened from the nagging fear of party-pooping suicide bombers, will be surprised to learn that much of the constituent assembly debates to produce the first (liberal) constitution centred on other-worldly matters.

On 4 December 1949, for instance, Ishtiaq Husain Qureshi, one of many culturally anglophile Oxbridge lawyers, rose to address the political science conference in Lahore’s imposing town hall with some notes on the constitution. At the time, the nation building process, like the mood of the gathered political scientists and historians, was caught in a paralysing deadlock between radical hope for a blooming national future and a deep-rooted fear of collapsing public order. As a member of the constituent assembly, Muhammad Ali Jinnah’s handpicked group of public men in charge of drafting the constitution, Qureshi had been key in rallying support for the recently adopted preamble to Pakistan’s legal embodiment, the so-called Objective Resolutions.

In the absence of any meaningful historical foundations, attempts to fuse universally applicable Islamic principles––consider the dramatic opening statement: sovereignty over the entire universe belongs to Allah Almighty alone––with more tangible materialist concerns for economic uplift and minority protection had clouded the Resolution in a mythical dust; oscillating between moments of existential brilliance and collective incompetence. Well aware of Pakistan’s cultural specificities, Qureshi’s short speech redoubled efforts to embrace the lack of her historical anchoring by arguing instead that the ‘dynamic force of Islam’ was in any case averse to squarely fixing any legal code on the unstable grounds of precedent alone. Not the past but the future was in need of appropriation. And just as people in modern times favoured the pilgrimage to Mecca on modern transport vehicles over ‘camels and horses’, political systems too had to abide to the spirit not the form of Islam, Qureshi concluded strongly.

Qureshi was certainly not alone in making sense of Pakistan’s first constitution as an instrument for achieving specific ends, which for him ranged from shielding an Islamic lifestyle, developing a new moral language around it, to participating in the burgeoning global order of nation-states towards ‘international peace and happiness of humanity.’ And while such high ideals and self-consciously cosmopolitan aspirations may appear laughable to Schmittian realists today, Qureshi’s scathing towards conservative reactionaries and modernists alike underscores his determination––even integrity––to reorient public life towards ‘new moral principles and values.’ Thus, the framers intrinsically merged the cultural survival of Islamic norms with the constitution. To conclude in Qureshi’s words: for a Muslim population to discard its innermost convictions in framing its constitution was to ask it to commit suicide.


SUGGESTED CITATION  Hussain, Adeel: Pakistan’s Reluctant Constitutionalism, VerfBlog, 2017/4/27, https://verfassungsblog.de/pakistans-reluctant-constitutionalism/, DOI: 10.17176/20170428-104741.

5 Comments

  1. NewYork102 Do 27 Apr 2017 at 19:28 - Reply

    ‚dressed in what cosmopolitan fashionistas will eventually appropriate as Taliban street-chic‘

    This!!!

  2. Madison G. Do 27 Apr 2017 at 23:48 - Reply

    The author starts with the Supreme Court gaining in strength and ends with Islam being central to the constituent assembly debates in Pakistan. So is the new constitutionalism of Pakistan different from what we have in the West? The author suggests that it is different but then uses the same categories (e.g. the Supreme Court as the guardian of the constitution) to describe it.

  3. Papagei Fr 28 Apr 2017 at 17:31 - Reply

    I dont know anything about Pakistans constitutionalism but this was an interesting read.

    @Madason, I think the article just assumes that Islam as as system of governance is inextricably twinned with liberal constitutionalism.

  4. as Mo 8 Mai 2017 at 11:41 - Reply

    Thanks to the author for commenting on the up to 500 pages long constitutional order. However, I would be interested in the meaning of it: The Supreme Court Judges ordered the formation of an investigation team, composed of – inter alia – members of the secret service, of the military and of the assembly. This is interesting from the German perspective, as we know the „committee of inquiry“ (art. 44 basic law), an explicit right of the Parliament (and not par ordre de mufti). Is the Order of the Supreme Court comparable to the German „Untersuchungsausschuss“?

    Furthermore, it is important to tell the whole story: Nawaz Sharif was Prime Minister two times in the 90s and ousted out of Powert by a military coup d’état in 1999. General Musharraf, who had managed to usurp power, then forced the Sharif family out of the country. They had been living in exile for almost a decade and only where able to return to the country in 2008 when the military dictator was chasen away by the Pakistani people in a very democratic spirit. The 2013-election was the first democratic transition in the history of Pakistan. I do believe, that this background is crucial to understand the Sharif family’s wealth outside of the country (although I do not want to judge on it).

    Lastly, I don’t think it is unusual for a democratic constitution to refer to higher moral norms. The German Constitution very prominently begins with the solemn vow „Conscious of their responsibility before God …“.

  5. Adeel Di 9 Mai 2017 at 00:25 - Reply

    Thank you for reading the essay and your insightful comment. As you rightly point out, the Supreme Court formed a joint investigation team composed of ’seasoned officers‘ from a number of government agencies: military intelligence, the inter service intelligence, the state bank, the national accountability bureau, and the federal investigation agency. The Court claimed their assistance –the constitution says ‚aid’– through articles 184(3), 187(2) and 190.

    In terms of institutional design these norms are closer to §27 BVerfGG (rather than Art. 44 GG, which, as you know, endows the Bundestag to establish an inquiry committee if a quarter of its members lionise the cause). The Art.44-inquiry-committee (Untersuchungsausschuss) is exclusively composed of democratically elected Bundestargaryens.

    I agree with your last point. The argument baked into the short blog post merely drew out the ways in which moral frameworks at the birthing moment of constitutions can entirely lack historical/sociological anchoring and yet be perceived as epistemological continuities.

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