On January 19, Prime Yousuf Raza Gilani was at the wheel of a white Land Cruiser as his cavalcade swept down Constitution Avenue in Islamabad toward the Supreme Court. Sitting beside him was his lawyer Aitizaz Ahsan, who just five years ago had scripted the countrywide movement against the summary sacking of Chief Justice Iftikhar M. Chaudhry. That Gilani chose to drive himself echoed his intent—not to shy away from the bruising fight that had pitted state institutions against each other. He was standing up, as he has frequently reiterated, for the principle that a democratic government was accountable to Parliament and the people. As he stepped out of the Land Cruiser before the court, a wide grin on his face, waiting Pakistan People’s Party (PPP) activists raised a storm of slogans.
Later, to a seven-member bench of the Supreme Court, Gilani said, “We respect the courts...my intention is to respect the Constitution.... (But) it will not give a good message to proceed against a president elected by a two-thirds majority. I have discussed this with my friends and experts, and they all agree that he has got complete immunity.” Gilani had earlier been served a notice for contempt of court as he had refused to implement an SC order asking him to write to Swiss authorities demanding repatriation of the billions President Asif Ali Zardari had allegedly stashed in banks there.
The Supreme Court adjourned the hearing to February 1, and Gilani has now been exempted from further appearance in court. However, Mohammad Malick, editor of The News, Islamabad edition, told Outlook, “Today’s proceedings got off to a smooth start but this does not mean that the road ahead will not be rocky.” PPP spokesperson Qamar Zaman Kaira says Gilani’s acceptance of the court summons “shows his respect” for the Supreme Court. “We fight cases in the courts, we do not fight with courts,” Kaira adds.
The PM did, in some ways, stage a climbdown, after weeks of thumbing his nose at the judges. As Malick told Outlook, “Interestingly, Aitizaz Ahsan, sensing the mood in the courtroom, avoided bringing in Clause 248 (the immunity clause) into his arguments.” Nor has he won unstinting public support for his fight. For instance, when Ahsan stepped out of the court room to speak to the media, his words were drowned in the slogans other lawyers raised against the government.
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The fight between the government and judiciary, with the army looming behind, will impact Pakistan’s delicate balance of power. This round went to the judiciary, says eminent lawyer Anees Jillani. “The contempt case proceedings have shown which branch of the federation has an upper hand: the PM is now at the mercy of the court and has a weak case. He can be convicted of contempt and thus disqualified not only from remaining in office but also being a member of the National Assembly for at least five years. The proceedings should thus be commended for promoting rule of law in Pakistan.”
But the inviolability of the law of the land is just an aspect of the story. From the time PPP came to power, the judiciary and the military have been training their guns at the executive, sniping at Zardari and Gilani at every conceivable opportunity. The tussle among the three institutions ebbed and flowed in the backdrop of a broad-spectrum crisis in the polity, with overlapping external and domestic strands. To begin with, the military under Gen Ashfaq Parvez Kayani drew certain red lines the popularly elected government wasn’t to transgress. From steering the foreign policy and keeping the finger on the nuclear button, to handling internal security, including the fight against terror, the GHQ was to call the shots, much to the government’s chagrin.
Simultaneously, the judiciary under Chief Justice Chaudhry began taking up cases suo motu and encroaching upon the space of the executive. For instance, in response to the violent unrest in Karachi over the past two years, Justice Chaudhry established a Supreme Court bench in the city. This had been preceded by the SC striking down the National Reconciliation Order, which had led to cases of corruption being dropped against public servants, including the Bhuttos. It also issued repeated orders to Gilani to write to the Swiss authorities.
But the killing of Osama bin Laden last May, as also the spate of drone attacks on Pakistani soil, discredited the mighty military irredeemably—and changed the balance of power among different institutions. Believing it wouldn’t be possible for a discredited army to stage a coup, the executive began to assert itself. For one, PPP stalwarts took to ridiculing the chief justice, and the government transferred bureaucrats thought to be assisting the judiciary.
The tinderbox was set ablaze by Memogate, a reference to Zardari’s alleged orders asking US ambassador Hussain Haqqani to write a memo seeking Washington’s help to thwart a military coup. As the executive and the military engaged in an unseemly verbal joust, the Supreme Court appointed a judicial commission to investigate Memogate. Haqqani’s lawyer, Asma Jehnagir, resigned in protest, describing the judiciary as the “court of the establishment”. It had people asking: was Chaudhry, summarily removed as chief justice by former president Pervez Musharraf, bent on vengeance against Zardari because he didn’t want to reinstate him?
Yes, say Zardari supporters. They argue that Chaudhry has become increasingly assertive, confident that he could rely on the military to enforce his orders against the executive. In other words, they accuse Chaudhry of conspiring with the army to stage a judicial coup, though they furnish little evidence to bolster their claim. Rallying its own forces, the government had the National Assembly pass a resolution harping on the need to maintain a balance of power among different institutions, and accepting the sovereignty of the people of Pakistan, who had elected the government.
This throws up the question: can the judiciary and the military invoke ‘national interest’ to question the people’s representatives? Claiming that Zardari is playing a farcical game by prolonging the showdown with the judiciary, Brig (retd) F.B. Ali suggests, “The court should declare that the only viable solution to this grave constitutional clash between the judiciary and the executive (backed by the legislature) is to seek a verdict from the ultimate sovereign authority—the people.”
But what Ali prescribes has been seemingly factored into Gilani’s defiance of the judiciary. It’s said the PPP wouldn’t mind a ‘judicial coup’ as it could then go to the election on the plank of protecting democracy. “This obsession is driving them towards combat mode,” says Pakistan Muslim League-Q president Chaudhary Shujjat Hussain, who’s a partner in the coalition government. However, Zardari’s spokesman, Farhatullah Babar, insists, “We respect the judiciary and it is our fervent hope that there will be no confrontation and no tension with it.”
Others cite cases to prove their contention that the SC is brazenly encroaching upon the domain of the executive. Apart from establishing a bench in Karachi, it has been hearing cases on the poor performance of railways, corruption in rental power plants and plundering of Balochistan’s mineral resources by a mining company. It even threatened to intervene in the Pakistan International Airline if it failed to set its house in order.
Eminent lawyer Athar Minallah, however, disagrees: “The accusations that the Supreme Court wants to be the government are baseless. Most cases have been brought to the notice of the court and in the power plants case, it was a sitting member of the cabinet who did it.” On the issue of setting up a bench in Karachi, Minallah argues, “I would argue that every citizen has a right to life and protection of property. If no other state institution is actually functional, matters come to court. The Karachi and Balochistan cases landing up at the SC shows that state institutions are ineffective.”
Critics say the court hasn’t demonstrated the same enthusiasm for cases involving the army. Take the case of missing persons, who never returned home after the intelligence agencies allegedly picked them up during the Musharraf regime. No doubt, the SC appointed a judicial commission, but it has failed to hold intelligence services to account for the disappearances. Why hasn’t the court pressed contempt charges against the agencies? (“How can they be hauled up for contempt when they confess they do not know their whereabouts,” Minallah shoots back.)
Or take the case involving the ISI paying politicians to rig the 1998 elections. The case was filed by Air Marshal (retd) Asghar Khan. And though he has written several letters to the court, he says, “They are not ready to listen to me for reasons best known to them.” Minallah explains the court’s reluctance with extreme candour: “The issue is not who took the money but who gave it to politicians. They would have to go against former army chief Gen Mirza Aslam Beg, and the intelligence chiefs. These are some bitter realities. Nobody wants to become another Salim Shezad.” What Minallah means is that a pugnacious attitude towards the intelligence agencies could provoke severe retribution.
Judicial activism doesn’t seem to impress Asma Jahangir. She told Outlook, “The judiciary says they are the law. This depicts their mindset. They can protect the Constitution, interpret it, but cannot claim to be a law unto themselves. While they do question (rightly) the use of discretionary power in an arbitrary manner by the executive, they continue to practise it themselves.” Ultimately, it is the all-consuming arbitrariness which threatens to upset the institutional arrangement as envisaged by the Constitution and flog Pakistan’s democracy.