Quoting contempt, plotting coup

The ongoing power tussle in Pakistan between the judiciary and the executive is a losing battle for both sides. While neither of them is going to emerge unscathed, governance is already taking a beating

Less than a month after Pakistan’s Supreme Court in a dramatic move removed the country’s then Prime Minister Yousuf Raza Gilani after charging him with contempt of court and thereby disqualifying his membership to Parliament on June 19, the stage is now being set for a repeat performance. On July 12, Mr Gilani’s successor, Prime Minister Raja Pervez Ashraf, is scheduled to inform the Supreme Court whether or not he will follow its orders to reopen old corruption cases against President Asif Ali Zardari. In all probability, Mr Ashraf, like Mr Gilani, will choose to defy the apex court’s diktat, reiterating the Government’s argument that the President enjoys immunity from such cases for as long as he is in office.

On its part, the Supreme Court can choose to once again charge the Prime Minister with contempt of court, but it is unlikely those charges will stick. On Monday, Pakistan’s lower House of Parliament, known as the National Assembly, passed a key legislation that provides blanket protection to all Government functionaries holding high offices from contempt of charges with regard to the performance of their executive duties. The Contempt of Court Bill, 2012, is expected to be cleared by the upper house of Parliament or the Senate, and signed into law by the President before July 12.

Technically, that should provide the Prime Minister some cover from an over-zealous judiciary but the situation still remains fluid and largely unpredictable. There has been a marked escalation in the ongoing tussle between the judiciary and the executive in recent months, and this has thrown awry the delicate balance of power that lay at the crux of the relationship between these two key state institutions. Consequently, the Pakistani Parliament may pass a law but there is no guarantee that the Supreme Court will not throw it out of the window on grounds of being unconstitutional, for example. Indeed, only two days before the National Assembly passed the law protecting the executive from contempt of court charges, Chief Justice Iftikhar Chaudhry made statements expressing exactly this very sentiment.

Of course, the fact that the country’s highest court has the authority to nullify a law that it deems to be at odds with the Constitution is a basic judicial principle. However, it is the timing of Mr Chaudhry’s comments that make them highly suspect especially when viewed in conjunction with his other equally worrying statements. On Saturday, Mr Chaudhry went as far as to say that the supremacy of Parliament was indeed “out of place in the modern era”, that it was actually the Constitution that should enjoy pre-eminence. This, as an editorial in a leading Pakistani newspaper rightly pointed out, is indeed “explosive” not only because it strips the country’s democratically elected Government of its powers but more so because those powers are now reinstated with the judiciary — ultimately, an elected institution — which portrays itself as the high keeper of the Constitution.

Clearly, the judiciary is courting trouble. But if the judges want to play rough, the political class — no matter how emancipated — has proven that it can also pack a punch or two just as well. Therefore, a day after Mr Chaudhry fired his ‘Constitution is supreme’ salvo, Mr Gilani hit right back at him by stating that it was Parliament that had in effect created the Constitution. When viewed in consonance with the Contempt of Court Bill, it is wholly evident that the Government will not be taking any of this judicial bullying down. It will put up a fight, and a good one at that. Besides, given that its tenure expires in less than six month, the Government has little to lose, anyway.

For the judiciary, however, the game is far from over. Its strategy of attacking the Government head on has achieved mixed results at best, and even that has come at the very high cost of its own reputation. Between 2007, when the Mr Chaudhry became a Pakistani household hero for standing up to then President Pervez Musharraf who had illegally fired him at the time, and now, the Chief Justice’s stock has fallen greatly. Some of course still laud his campaign to cleanse Pakistani politics of widespread corruption, but most others can’t ignore the stench of personal vendetta that engulfs his actions. For instance, the Chief Justice’s June 19 decision to actually disqualify Mr Gilani as Prime Minister — earlier, he had left that decision to the Speaker of the National Assembly — came only after a real estate tycoon with close ties to the President charged Mr Chaudhry’s son of bribery. Some believe that Mr Gilani’s dismissal was indeed an act of revenge by a powerful father on behalf of his wronged son.

Either way, the larger picture is gloomy and hopeless. There is no end in sight even though this tug-of-war has been dragging on for several years now. At the core of the dispute still lies the National Reconciliation Ordinance, an amnesty law instituted in 2007 by then President Musharraf as part of a power-sharing deal with the PPP’s exiled leader Benazir Bhutto. According to the agreement, Mr Musharraf through the NRO would close the graft cases against Bhutto and her husband, Mr Zardari (as well as many other politicians) who had been accused of money laundering through Swiss bank accounts, in return for the PPP’s support for his re-election bid at the end of that year. Towards that extent, the then Chief Justice of Pakistan had even written to Swiss authorities to close the Bhutto-Zardari files and the latter had complied. But things didn’t go as planned. By 2009, Bhutto was dead, Mr Musharraf had resigned and left the country, and Mr Chaudhry was Chief Justice. He found himself an empty playing field and promptly, hit his first goal: He struck down the NRO.

Since then, he has been insisting that the Government write to Swiss authorities to disregard the earlier letter and by default reopen the graft cases. But as a Supreme Court lawyer has recently pointed out, Mr Chaudhry does not need the Prime Minister or any other Government official to write that letter. He can write it himself, and it would be just as valid. The problem for Mr Chaudhry actually lies in the fact that the Swiss, no matter what, will not reopen the graft cases against Mr Zardari while he is still President because of the immunity he enjoys under Pakistani law.

In effect then, this is a losing battle for both parties. While the judiciary has already lost much of its credibility with little to show in return, the Government also has suffered many battle scars with its own position within the establishment now significantly weakened. It is time for both to cut their losses and leave the battlefield.

(This article was published in the Op-ed section of The Pioneer on July 12.)