PAK JUDICIARY VS EXECUTIVE: WHAT NEXT?

B.RAMAN

Makhdoom Shahabuddin,  who was Minister for Textiles in the outgoing Cabinet headed by Prime Minister Yousef Raza Gilani, has reportedly  been nominated by President Asif Ali Zardari to be the new Prime Minister of Pakistan. Barring unlikely surprises, he is expected to be elected to the vacant post by the National Assembly on June 22,2012.

2.On the instructions of Mr.Zardari, the Pakistan People’s Party members and legislators have conducted themselves with dignified anger and restraint in the wake of the controversial ruling of a three-member bench headed by Chief Justice Iftikhar Muhammad Chaudhry disqualifying Mr.Gilani from holding office because of his earlier conviction for contempt of court. The  conviction was triggered off by  his failure to carry out the directive of the court to write to the Swiss Government for re-opening investigation into a case in which allegations of money-laundering had been made against Mr.Zardari and the late Benazir Bhutto.

3. The PPP has decided not to challenge the ruling of the Supreme Court and to accept its verdict despite its serious reservations over its validity. The Election Commission, apparently with the prior concurrence of Mr.Zardari, promptly carried out the directive of the court to declare Mr.Gilani disqualified to hold the post of the Prime Minister and to  function as a member of the Parliament. Immediately thereafter, Mr.Gilani vacated his official residence and shifted to the Islamabad Club. The PPP has advised its cadres against holding any public demonstrations on this issue.

4.”The Daily Times” of Lahore (June 21,2012) has quoted an unnamed leader of the PPP as saying as follows :“We will protest over this highly politicised and PPP-specific judgement, the way the democratic forces should protest yet will desist from taking it to a point of no return for the continuation of the current system and ensure a democratic transition.”

5.Now that the PPP  has decided to comply with the verdict against Mr.Gilani, the question is whether the confrontation between the Executive and the Judiciary at the institutional level and between Mr.Zardari and the Chief Justice at the personal level will continue and, if so, in what form and with what consequences.

6. While the analysts of the Pakistani political scene have focussed on the institutional confrontation between the Executive and the Judiciary, they have overlooked the personal confrontation between the Chief Justice and Mr.Zardari, which has also played a role in the dogged determination with which the two institutions have fought each other.

7. This personal confrontation had its roots in the lack of enthusiasm of Mr.Zardari for the re-appointment of Iftikhar Muhammad Chaudhry , who had been removed from office by Gen.Pervez Musharraf, as the Chief Justice and the nullification of  the National Reconciliation Ordinance (NRO) of Musharraf, which enabled Zardari and Benazir to return from political life and resume their political activities, by the Chief Justice after re-assuming office.. The nullification of the NRO created the danger of Mr.Zardari’s election being questioned by the court at some stage. It was the NRO that removed the disqualification against Zardari on the ground that he was facing a criminal investigation.

8. The Chief Justice avoided creating the impression of his being vindictive against Mr. Zardari because of the latter’s dragging his feet over the question of his re-appointment. He kept the pressure on Mr.Gilani, who was really carrying out the wishes of Mr.Zardari, and avoided directly targeting Mr.Zardari by questioning the legality of his election once the NRO was set aside.

9. The Chief Justice has hit out against Mr.Gilani directly and Mr.Zardari indirectly by framing the verdict of the bench headed by him as based on constitutional principles and not caused by personal petulance. The constitutional principle that he has asserted is that in determining the constitutionality of the actions of the Executive and the Parliament, the interpretation of the Judiciary will be final. This is a judicial position that nobody can question despite suspicions that exterior factors have influenced the judgement.

10.From the acceptance of the verdict by the Election Commission and the Government without delay, it is apparent that Mr.Zardari and his advisers have decided to come to terms with the  reality that in this case they are on a weak wicket. The Government’s options have been reduced and it cannot hope to prevail ultimately in any confrontation with the judiciary presided over by the present Chief Justice on the question of asking the Swiss Government to re-open the investigation into the pending allegations against Mr.Zardari.

 

11.Will the court now ask the new Prime Minister to write to the Swiss Government? If so, will he do so? If he too refuses to do so, the drama could be repeated---- with the danger of Mr.Zardari becoming the direct  target on the ground that he was unable or unwilling to make his Prime Minister comply with the directive of the court.

12. These questions were posed by some journalists to Barrister Aitzaz Ahsan, who represented  Mr.Gilani before the court. He has been quoted as replying as follows: “ A decision would be taken in this regard once the court directs the new Prime Minister to do so.” His reply gives no clue as to what the new Prime Minister might do.

13. However, there are other indicators which suggest that Mr.Zardari feels that the confrontation on this particular issue should not be allowed to reach a point of no return. Such a confrontation could be counter-productive. Among such indicators are the Government’s  decision not to appeal against the judgement to a larger bench and to implement the verdict however unpalatable it might be.

14. The confrontation would most probably continue, but not necessarily on the issue of a letter to the Swiss Government. The Chief Justice, who was till now occupying the moral high ground, has been placed on the defensive by serious allegations of his son Arsalan Iftikhar being the beneficiary of a financial relationship with a businessman of questionable credentials. Apparently realising that this case could be a mine-field , the Chief Justice has sought to pre-empt any allegations of inaction by him by suggesting an enquiry into the allegations against his son by the National Accountability Bureau.

15. This investigation could provide Mr.Zardari and his advisers with an opportunity to keep up the campaign to have the Chief Justice discredited. The confrontation will continue in other forms and other arena, but to describe the recent judgement disqualifying Mr.Gilani as a judicial coup would be overstating its significance and  implications . ( 21-6-12)

( The writer is Additional Secretary (retd), Cabinet Secretariat, Govt of India, New Delhi, and, presently, Director, Institute For Topical Studies, Chennai, and Associate, Chennai Centre For China Studies. E-Mail: seventyone2@gmail.com . Twitter: @SORBONNE75 )