Ali Khan of Washburn University School of Law and attorney Hira Ghumman, formerly of the United Nations Office of Counter-Terrorism, argue that civil litigation and criminal prosecution have become tools of revenge for Pakistan's ruling elites, particularly in their fight to acquire or retain state power...
Civil action and criminal prosecution are the two great substitutes invented by law to replace revenge, a deeply wired instinct among humans expressed in a Mesopotamian maxim, an eye for an eye, tooth for a tooth. In Pakistan, most ironically, civil litigation and criminal prosecution have become the revenge instrument, particularly among ruling elites fighting to retain or acquire state power. On May 9, the former prime minister Imran Khan (IK) was arrested with a massive show of unnecessary force from the premises of the Islamabad High Court, where he had come to defend corruption and fraud charges. Today, the Supreme Court declared the IK arrest illegal.
Harassment through filing civil and criminal cases against anyone in any legal system is the ugly triumph of modern legalism. In Pakistan, filing cases is a pathological pastime for the ruling elites. Hundreds of cases linger in courts and administrative agencies for years until the parties quit or die. Under loose notions of ripeness and legal standing, anyone can access any court, including the Pakistan Supreme Court and provincial High Courts, with frivolous and false petitions, abstract complaints, and pleas for threatened and supposed injuries. Defamation lawsuits are the most favored form of litigation revenge.
After losing power, IK faces hundreds of cases, some real, some surreal, and some fabricated for harassment. He is fighting a paternity lawsuit, failing to disclose a child he birthed in the U. S. He is facing charges of terrorism. IK and his political party are under investigation for receiving campaign funds from foreign citizens and corporations. Petitions assert that IK has threatened judges and the Election Commissioners. And scores of criminal cases charge IK and his followers for disrupting the peace, destroying public property, attacking police officers, and burning trees in Islamabad.
The cases against IK are payback for what he did to scores of political leaders when IK controlled the state machinery as the prime minister with the proactive support of a few military generals. Ironically, in protesting IK’s arrest, his supporters across the country are looting and burning the houses and offices of military generals, whom IK blames as the primary actors behind his removal from office, detention, and assassination attempt. The government has called on the army to suppress the nationwide violence.
This commentary explains how political elites use litigation against each other as revenge. Unfortunately, judges and generals are accomplices in litigation and prosecution harassment. Since its creation in 1947, generals have toppled popularly elected governments, and Supreme Court Judges have endorsed military takeovers under innovative legal theories, prompting doctoral dissertations, including mine. The generals and judges forge covert alliances to construct civil actions and criminal prosecutions against disfavored political parties and their leaders. There are valid reasons why Pakistan stands extremely low among nations in the rule of law index. IK is both the victim and the perpetrator of litigation harassment.
Imran Khan Uses Revenge Instrument
After unsuccessfully struggling for decades to make his place in politics, IK finally joined hands with military generals to rig and win the 2018 general elections for his political party. IK was a tremendous political experiment that the army generals launched in 2014 to snatch political power away from established political parties that have ruled Pakistan for decades. The generals and IK built a successful narrative that family-based political leaders were corrupt and incompetent and had stolen millions of dollars from the national exchequer. The slogan that Pakistan needed a new leader like IK, who could lead the nation honestly and uprightly, was a great sell to the people.
Some Supreme Court Judges joined the script to promote IK as a Godsend savior for Pakistan. These Judges first disqualified the sitting Prime Minister Nawaz Sharif from office for being dishonest and untrustworthy and banned him from politics for life. Second, they declared IK a “truthful and trustworthy” leader in a gratuitous judgment, thus paving the way for his rise to power.
After winning the 2018 elections, IK unleashed the revenge tools of false litigation to arrest and harass the leaders of opposition parties and their families. IK sent to prison former prime minister Nawaz Sharif and his daughter, former prime minister Khaqan Abbasi, former President Asif Zardari and his sister, former Chief Minister of Punjab Shahbaz Sharif and his son, and scores of other political leaders under the National Accountability Bureau laws, which required no court appearance for months. IK later revealed that the generals, and not him, controlled who would go to prison.
In a speech in the United States after IK visited President Trump, IK proudly declared that he had imprisoned Pakistan’s corrupt thieves (politicians) and would ensure that these thieves do not get fans in the summer months or any other amenities in jail. IK followers cheered the promised torture of the detained political leaders. For years, the jailed leaders could not get any relief from the courts as judges were pressured not to relax the revenge instrument.
Despite the intense military pressure, some high court judges refused to join the political experiment of promoting IK as the savior and condemning other politicians as thieves. Justice Shaukat Siddiqui was the senior judge of the Islamabad High Court who declined the military request to uphold Nawaz Sharif’s punishment in a corruption case that the generals had procured from the lower court. “We are not independent, and our institution is in the hands of those carrying guns,” he told a gathering of lawyers in Rawalpindi. Justice Siddiqui lost his job.
In 2017, Justice Faez Isa, in a Supreme Court judgment, criticized the military support of a religious party invited to Islamabad to disrupt the functioning of the Nawaz government. After acquiring power in 2018, IK launched a legal proceeding at the behest of the generals to oust Justice Isa from the Supreme Court. However, Justice Isa survived the revenge attack and will be the next Chief Justice under the seniority rules.
Revenge Instrument Falls on Imran Khan
In 2022, in a dramatic turn of events, IK lost the military support that had brought him to power. The Chief of the Army Staff conspired with the opposition political parties urging them to join hands and move a motion of no confidence in the Parliament against IK. The Chief pressured small political parties in the Parliament to vote against IK. IK lost power.
Soon after his removal, IK planned a mob assault on Islamabad to oust the newly installed government but failed. The more he resisted the government and the military, the more popular IK would become among the masses. According to polls, IK is now the most popular hero in the country’s history.
Riding on popular support, IK has launched a fierce campaign against the military generals who removed him from power. For a while, IK singled out the U.S. for conspiring with the generals, a political narrative that stoked anti-Americanism but made him highly popular. In his daily speeches, IK has identified the generals he thinks are plotting against him and planning to kill him. The armed forces repeatedly assert that they are politically neutral, and they do not participate in fights between political parties.
Knowing that he will win the general elections, IK is unwilling to negotiate with political opponents. “I am willing to negotiate with terrorists and the enemies of Pakistan, but not with these politicians who have looted the country,” says IK. As his frustration grows, IK employs the rhetoric as if he is fighting an occupying foreign military, provoking his followers to overcome any fear they might have of the generals. IK calls the generals traitors and criminals. This vitriol against the army has inspired his followers to attack military installations and the private residences of military officers.
The political parties that suffered under the IK government are determined to see IK banned from politics. Just as IK and his followers sought the disqualification of Nawaz Sharif from politics, Nawaz Sharif and his followers are seeking the disqualification of IK from contesting elections as a candidate and party leader. Despite their popularity, prime ministers have been executed, murdered, exiled, and arrested. What is happening to IK is not new in the lawless democracy of Pakistan.
The rule of law is fragile as the courts are pressured to do the bidding of powerful elites. The elites of Pakistan use the law as a revenge instrument to pursue their political objectives of acquiring and retaining power. They fabricate cases against each other and use the criminal justice system for harassment. Unfortunately, some politicized judges and generals further sharpen the revenge instrument to cut political throats, sometimes literally. Imran Khan, despite his popularity, faces intense law-based harassment, just like other political leaders did while he was in power.
Ali Khan is the founder of Legal Scholar Academy and an Emeritus Professor of Law at the Washburn University School of Law in Topeka, Kansas. He has written numerous scholarly articles and commentaries on law. In addition, he has regularly contributed to JURIST since 2001. He welcomes comments at firstname.lastname@example.org.
Hira Ghumman is an attorney at law and has served in the United Nations Office of Counter-Terrorism. She welcomes comments at email@example.com.
Suggested citation:L. Ali Khan and Hira Ghumman, Imran Khan and the Weaponization of Litigation by Pakistan’s Elite, JURIST – Academic Commentary, May 11, 2023, https://www.jurist.org/commentary/2023/05/imran-khan-weaponization-litigation/.
This article was prepared for publication by JURIST Commentary staff. Please direct any questions or comments to them at firstname.lastname@example.org
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