July Issue 2012

In Pakistan, a strange constitutional boxing-match is taking place between two pillars of the state. In the red corner, wearing the flag of ‘supremacy of law’ and being tended to by a team of lawyers and media personnel, is the Supreme Court. In the black corner, wearing the stripes of ‘parliamentary sovereignty’ and with one eye bleeding, is the civilian government. Final round. Will the Supreme Court deliver the knock-out punch to the government, or will the government (though bruised and battered) remain standing till the end of the match? There is the bell… (And everyone waits with bated breath).

How have we come to this impasse? And where do we go from here?

First question first: While the ongoing turf-war between the Supreme Court and the government extends to the esoteric reaches of dual-nationality, corruption scams by government officials, Memogate and the Dr Arasalan saga, the primary issue at the heart of the current controversy is the writing of a letter to the Swiss authorities (pursuant to the NRO judgment), and the resulting disqualification of an elected prime minister through a judgment of the court. In this regard, the facts are relatively simple.

On December 16, 2009, in the case of Dr Mobashir Hassan vs Federation of Pakistan, the honourable Supreme Court declared the NRO to be unconstitutional and, inter alia, ordered the federal government to, once again, initiate the cases pending against President Asif Zardari in the Swiss courts. This, in many ways, was the first punch by the Supreme Court to the coalition government. People’s Party (with neither the media nor populist support behind it) fought back, terming this particular direction of the court to be analogous to “the trial of Benazir Bhutto’s grave.”

Frustrated with the lack of implementation of its judgment, the honourable Supreme Court specifically directed the prime minister to write a letter to the Swiss authorities and, upon his refusal to do so, the prime minister was convicted of ‘willfully disobeying the court’s order’ and ‘ridiculing/scandalising the court’ in the process. This was the next (debilitating) punch to a government that was already embroiled in numerous other scandals (of its own making). This time, the government hid behind a nuanced interpretation of Article 63(2) of the constitution, arguing that the speaker of the National Assembly had ‘discretion’ in the matter of sending the prime minister’s disqualification case to the Election Commission; and exercising such discretion in the party’s favour, the speaker ruled that ‘no question’ of the prime minister’s disqualification had arisen (despite the court’s orders) and therefore no reference shall be sent in regards to the same.

At this stage, suddenly, the national focus shifted away from the issue. Enter: Dr Arsalan Chaudhary and Malik Riaz.

In a startling revelation that threatened to shake the foundations of our belief in the very system of justice that has been hailed as our national salvation since 2009, Malik Riaz (the alleged robber-barron) alleged that the chief justice’s son had extorted 340 million rupees from him (over a period of three years) on the promise of favourable verdicts from the apex court. Suddenly the prime minister’s contempt and writing of the letter were no longer issues of the hour. Cries of ‘conspiracy’ were raised across the media, the Bar Councils, and the opposition political parties. The propagators of ‘Chief tere ja’nisaar…’ argued that Zardari and the PPP government must be behind this ‘scheme’ aimed at maligning the honourable chief justice (because, of course, Dr Arsalan is innocent, and, of course, the chief justice simply did not know how his son had amassed a wealth beyond the family’s resources). The court sprung to action, as a two-member bench hurriedly passed an order exonerating members of the apex court, castigating the media, declaring that in its suo moto jurisdiction the court refrains from ‘inquisitorial proceedings’ (please ignore the inquisitorial proceedings in the Haris Steel, NICL, Haj scam and missing persons cases), and directing the attorney general to proceed in the matter before the relevant trial courts.

Suddenly, the gloves were off in the boxing match! Whether or not the PPP government had ‘conspired’ against the judiciary, the apex court certainly reacted with vehemence. Just a few days later, listening to an appeal against the speaker’s order, a three-member bench, headed by the chief justice himself disqualified the prime minister (through an order that spans a total of two paragraphs)! And in the process, the apex court dispensed with the requirements of Article 63(2) and 63(3), which lays down the constitutional procedure for such disqualification (a reference forwarded by the speaker to the Election Commission). The court could just as easily have ordered the speaker to write the letter to the Election Commission (per Article 63(2) and 63(3) of the Constitution), which would have had the same result (of disqualifying the prime minister) some days later. But no… in the aftermath of Dr Arsalan’s case, there was no point in getting entangled in constitutional procedure when a final punch could be delivered without it. Knock out!

While the new prime minister and his cabinet have been sworn in, we are still left with the second of our two questions: where do we go from here?

The NRO judgment still holds field, requiring the writing of a letter to the Swiss authorities, but this entire saga has brought us no close to writing it. In many ways, the constitutional crisis has lunged back six months to the point where we stood before when Yousuf Raza Gilani was served with a charge-sheet. And a number of options can follow from here.

If the Supreme Court directs the new prime minister to write a letter to the Swiss authorities, two possible outcomes could result. First, the new PM could write such a letter (wishful thinking). While it would defuse the crisis, the possibility of this happening is extremely unlikely. If the government had eventually intended to write the letter, why would they have sacrificed Gilani?

Second, the new prime minister, upon being directed by the Supreme Court to write the letter, could once again start the bureaucratic machinery of soliciting advice on the matter from the Ministry of Law (which will take some time) before deciding on the issue. Thereafter, if (as expected) he decides not to write the letter, the court would then have to frame a fresh contempt of court charge against this prime minister, his counsel will have an opportunity to contest the charge, and after numerous hearings, a new conviction and disqualification could follow. All this would be time-consuming — perhaps enough to get this government closer to a time when it chooses to announce fresh elections (without having written the letter). And not just that, it will almost certainly result in some backlash for the court among PPP supporters, who would rally around the battle-cry of judicial martyrdom.

A third option is also possible: the Supreme Court could back-off from the issue. Having made the point that it would not allow anyone to willfully disobey its verdicts, the court could refocus its energies on the everyday dispensation of justice and the plethora of other issues of national importance before the honourable judges. This option is also unlikely, since certain segments of the media and the opposition parties will probably not let die the issue of writing the Swiss letter.

Alternatively, if the pressure on the present government continues to mount, a fourth (preferable) option could also result: the calling of early elections. President Zardari, faced with the possibility of a second prime minister being ousted, could take the saner road of consulting with the opposition parties to form an interim government that takes the nation to its next polls. All indications at the moment point towards the fact that the coalition government will not demonstrate such political maturity, and will aim to prolong its reign of power for as long as possible.

In essence, where we go from here is less a question of either law or politics. It is a question of people, their wisdom and their ability to show restraint in the face of adversity. People’s Party can end the crisis by simply calling early elections. And the judiciary could dissolve the constitutional tension by exercising restraint. If past experience is any indicator, sadly, neither of these two courses of action will be adopted. The polity will continue to play its games and prefer to be ‘martyred’ by the judiciary, whereas the court, wearing the cloak of the nation’s saviour, will continue to push the government into a corner. And in the process, regardless of who wins, our constitutional jurisprudence and our people stand to pay the price.

This article was originally published in the July issue of Newsline under the headline “Constitutional Boxing.”