I am writing this column just after coming across the news this morning that for the first time in the history of Pakistan, the chief executive of the country, Prime Minister Syed Yousuf Raza Gilani, appeared before the Supreme Court to defend his government’s decision of not abiding by the Court’s previous directive of writing to the Swiss authorities to reopen a corruption case against President Asif Ali Zardari. Gilani was, in fact, summoned by the Court to explain why he could not be convicted of “contempt” against the highest judiciary of Pakistan.
In his defence, the Pakistani Prime Minister said: “All over the world, Presidents enjoy immunity and Constitution of Pakistan also provides immunity to the President. That is why we did not write to Swiss authorities.” His lawyer Aitzaz Ahsan further clarified that “until Asif Zardari is holding the office of President, letter cannot be written to Swiss authorities as he enjoys immunity under Article 248 of the Constitution” and that “Supreme Court’s verdict will be implemented when President Asif Ali Zardari is no longer president”.
The Court then adjourned, with the bench deciding February 1 as the next date of hearing the case further before deciding what to do with the Prime Minister and the President. Thus, a huge political and constitutional crisis in Pakistan has been averted for the time being. Because, it was widely expected that the Prime Minister would be convicted by the Court today itself and thus lose his parliamentary membership. And had that happened, it would have been a matter of days in ousting President Zardari as the Supreme Court, particularly Chief Justice Iftikhar Chaudhry, has been baying for his blood for a long time.
But then, all this is a temporary respite, with the sword of Damocles continuing to hang over the head of the civilian government. In any case, the fact that civilian regimes in Pakistan have always been fragile is something that is not new. What, however, is new this time is that unlike in the past when threats to civilian rules came from the military, now the danger is from a Chief Justice who is increasingly becoming highly partisan and vindictive. In fact, I am going to argue that the Pakistan Army, which has staged a number of coups in the country and dismissed elected governments, is trying to realise its objectives this time through the Chief Justice. In other words, Chaudhry is doing things indirectly that earlier the Army was doing directly.
Ironically, it is Chaudhry who has won many plaudits for bravery as the only judge in Pakistan’s judicial history to have stood up to a military ruler and won. In 2007 he was sacked by the then military ruler and “President” Prevez Musharraf. That instantly brought tens of thousands of people to rally around him in a movement that ultimately led to elections and Musharraf being ousted in 2009. And in this movement, both the premier political parties—Nawaz Sharif’s PML (N) and Benazir Bhutto’s PPP—had joined hands. Subsequently, when the PPP won and Zardari became President, some differences cropped up over the manner in which Chaudhry would be reinstated. While Nawaz Sharif was for unconditional reinstatement, Zardari wanted that Chaudhry, along with other sacked judges, should be taking a fresh oath. That was not to the liking of Chaudhry who, in any case, was reinstated. But he nursed a grudge against Zardari, whom he suspected to be close to Musharraf. And systematically since then, he has been troubling Zardari and his PPP government through what critics say blatantly partisan judicial pronouncements. He has barred the President from exercising his discretionary power of pardoning people charged with “blasphemy” cases (in Pakistan it is very easy to hang a person just by charging that he or she just insulted “Islam” by either words or deeds).
In fact, the Chief Justice saw to it that the “general amnesty” that General Musharraf had granted in 2009, facilitating the return of the Bhuttos and Nawaz Sharif to Pakistan from exile was declared “illegal”. It is this order that facilitated the Supreme Court to reopen the cases against Zardari (instruction to write to the Swiss courts was the direct fallout). But in this, Chaudhry has been extremely partisan in favour of Nawaz Sharif. In fact, only yesterday (January 18), the Pakistan Supreme Court (Chaudhry headed the Bench) asked the Punjab government to restore all properties of Nawaz Sharif and his family members (including the business assets), confiscated under Musharraf regime on similar corruption charges.
Chaudhry now wants that President Zardari must be charged for “treason” as demanded by the Army by investigating himself for the so-called “Memo-gate” (the allegation that the civilian government sent a memo through a businessman of Pakistan origin to a high official of the United States, requesting Washington to do everything to stop a coup that the Pakistani Army was planning, following the killing of Osama bin Laden inside a Pakistani cantonment at Abbottabad) scam. The government denies the charges and has instituted a parliamentary enquiry. But the Supreme Court is so impatient that it has not waited for the conclusion of the Parliamentary commission and has admitted the contention of Army Chief Ashfaq Kayani and his colleague, the ISI Head Ahmad Suja Pasha, that the persons responsible for episode must be punished, which, in effect, means that Zardari must be dismissed and put behind bars. Incidentally, the Army Chief and the ISI head bypassed the government in going to the court directly, defying thus the norms and rules. In fact, for this defiance, they would have been dismissed in any other democracy. However, for Chaudhry, this defiance does not matter.
As mentioned earlier, it may look strange that the chief justice of a country, who had suffered at the hands of the military, is now in full support to the same military, the common goal being the ouster of President Zardari and his PPP-led government. But if one goes deeper, it becomes apparent that Chaudhry had apparently no problem in the beginning with even Musharraf’s military coup in late 1999. In fact, it is Musharraf who made him a Justice of the Supreme Court in 2000. He sat on four pivotal Supreme Court benches between 2000 and 2005 that validated the military takeover by General Musharraf, his so-called referendum approving of his takeover, his legal framework order (LFO) and the 17th constitutional amendment that gave the President additional powers and allowed him to continue as the Army Chief. In fact, it must have been for his “loyal service” that he was elevated as Chief Justice by Musharraf in 2005. If subsequently they fell out, it was mainly because they differed on the privatistion of properties controlled by the Army and the illegal detention of some people in secret custody. That made Chaudhry very popular in media circles, particularly the visual media. The charm of media made him increasingly bold as he realised that Musharraf, thanks to his prolonged rule, was fast becoming unpopular.
In other words, as a matter of principle, Chaudhry has no strong grudge against the overreach of Pakistani Army in the nation’s affairs. He has no problem in currying favour with the men in uniform even if they victimised him not very long ago. In fact, whatever little knowledge that I have of Pakistan and its history, the judiciary has never been particular about the sanctity of democratic or civilian rule. It has been a well-known fact that Pakistani judiciary invariably enunciates “the doctrine of necessity” when confronted with questions relating to military rule. So far, there have been four cases of Presidential dismissal of Prime Ministers and an equal number of instances in which a General has overthrown the elected government and seized power in Pakistan since 1953. But except in the case of General Yahya Khan when it denounced him as a usurper, and that too, at a time when he lay sick under house arrest, the Pakistani judiciary has “legitimised” the other three coups on the basis of what Pakistani commentators call a doctrine of necessity. The courts have always accepted the concerned General’s claim that the preceding government had pushed the country to the brink of disaster and that he had intervened “in supreme national interest”.
The Pakistani judiciary has hardly sided with “the uncompromising liberals” who are opposed to the undemocratic or authoritarian military regimes. Instead, it has been a part of “collaborators” who have attributed most of Pakistan’s present ills such as corruption, cynicism and disregard for the interests and the rights of the common people to the misrule of the civilians. Having built his career in such an environment, Chaudhry is no democrat. No wonder why he is now the biggest threat to the Pakistani democracy.
By Prakash Nanda