After having fairly successfully defied the Army over the so-called Memogate affair, the elected Pakistani Executive headed by President Asif Ali Zardari has now chosen to defy the judiciary on the question of its refusal to write to the Swiss Government requesting it to re-open the investigation into some Swiss bank accounts allegedly belonging to Zardari and the late Benazir Bhutto.
2. The directive to write to the Swiss Government came from the Supreme Court headed by Chief Justice Iftikhar Mohammad Chaudhury. The Executive could have easily written to the Swiss Government and avoided a confrontation with the judiciary. It was very unlikely that the Swiss Government would have re-opened the investigation. Once the Executive wrote this letter, there would have been no more grounds for the court to proceed against Prime Minister Yousef Raza Gilani on a charge of contempt of court.
3. Instead of choosing this easier option, the Executive has chosen the more difficult and complex option of refusing to write to the Swiss Government on the ground that Zardari as the President enjoyed immunity from investigation and prosecution.
4. Faced with a defiant Executive, a seven-member bench of the court, headed by the Chief Justice, has framed an indictment ( US expression ) or a charge-sheet ( a sub-continental expression inherited from the British) against Gilani on February 13,2012.What this means is that from being a man under investigation as he was till now, he has become an accused in a criminal prosecution, but he is not yet a convict. The question of his resignation from office and arrest would arise only if after the trial, the charge of contempt of court against him is held to have been proved and he is convicted.
5. At the pre-trial stage of framing of the charge-sheet, there was no scope for a compromise or flexibility in the judiciary’s handling of the case. The court had no other alternative but to charge-sheet and Gilani has no other alternative but to stand trial. The question of a possible Presidential pardon would arise only after conviction and not in the pre-conviction stage
6. The intriguing question is what accounts for the apparent confidence of the Executive that it can defy the Judiciary and still escape negative consequences. There are three plus points for the Executive--- firstly, the solidarity between Zardari and Gilani continues; secondly, the Pakistan People’s Party (PPP) and its coalition allies remain united behind the Zardari-Gilani combine; and thirdly, there has been no public reaction against the Executive for defying the judiciary similar to what one saw against Pervez Musharraf when he defied the judiciary and had Iftikhar Mohammad Chaudhury dismissed.
7. Another important plus point is that Aitzaz Ahsan, the celebrated lawyer belonging to the PPP, who was in the forefront of the “Back Iftikhar Mohammad Chaudhury” movement formed by the public and the lawyers community, is now supporting the Executive against the judiciary and defending Gilani. He seems to have lost his influence with the Chief Justice, but it is likely that he still has a good equation with some other judges of the bench that would try Gilani.
8.If the trial goes ahead as expected, three alternative scenarios are possible:
(a). Scenario 1: A split develops in the Bench and a majority verdict convicting Gilani eludes it, thereby forcing a compromise.
(b).Scenario 2: The Bench remains united and reaches a majority, if not unanimous, verdict convicting Gilani who is then pardoned by Zardari.
( c ). Scenario 3: Gilani is convicted and chooses to resign and go to jail in order to highlight excessive judicial activism.
9. If Zardari does not exercise the right of presidential pardon and if Gilani chooses to go to jail, there will be a new phase of aggravated political uncertainty in Pakistan. ( 13-2-12)
( The writer is Additional Secretary (retd), Cabinet Secretariat, Govt. of India, New Delhi, and, presently, Director, Institute For Topical Studies, Chennai, and Associate of the Chennai Centre For China Studies. E-mail: email@example.com Twitter : @SORBONNE75 )