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From
Tehelka Magazine, Vol 9, Issue 04, Dated 28 Jan 2012 |
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The Blame Game in Pak
While the Gilani government approaches its legal troubles politically, the Supreme Court pursues certain cases in a manner that undermines its even-handedness
Cyril Almeida, Assistant Editor and Columnist, Dawn
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Better choice Between Bhutto and Sharif, Bhutto was the acceptable compromise between Musharraf and the West
Photos: AP |
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IN NOVEMBER 2008, at a special ceremony at the Harvard Law School, the deposed chief justice of the Pakistan Supreme Court, Iftikhar Chaudhry, was presented with the Medal of Freedom, a special award established by the school to recognise the achievements of individuals committed to freedom, justice and equality. The award had been conferred only twice before: to Nelson Mandela and to the litigation team that fought the landmark case abolishing segregation in American schools.
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Feeling targeted The PPP’s complaint is this: of the 8,041 beneficiaries of the NRO, why is the court singularly focussed on President Zardari
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Chaudhry’s struggle to return to the Supreme Court was still continuing at that point. First suspended by Gen (retd) Musharraf in March 2007, and then sacked along with scores of other superior court judges in November 2007, Chaudhry was finally to return to the Supreme Court in March 2009, after a ‘long march’ led by the Pakistan Muslim League-Nawaz (PML-N) supremo, Nawaz Sharif, and the legal community threatened to lay siege to Islamabad and forced President Asif Ali Zardari to reinstate Chaudhry.
Without the astonishing resolve of Chaudhry, however, the ‘lawyers’ movement’, which challenged the rule of Musharraf and sought to reinstate the judges he had sidelined, would never have got very far. At the HLS Medal of Freedom ceremony, Chaudhry’s steely determination was in ample evidence: “I only did my duty according to my conscience. It was the proclamation of a new manifesto for Pakistan, a declaration that the pursuit of justice cannot be subverted or resisted.”
Fast forward to January 2012, and that ‘pursuit of justice’ has found Prime Minister Yousuf Raza Gilani summoned to the Supreme Court with the threat of contempt of court hanging over his head for his government’s refusal to write a letter to Swiss authorities that could reactivate a corruption case against President Zardari. (The seven-member bench before which Gilani will appear on 19 January does not include Chief Justice Chaudhry.)
In the intervening years, at least some of the gloss has come off Chaudhry and his Supreme Court. Who is to blame for the crisis between the judiciary and the government depends on the point of view taken. Partisans of the Supreme Court accuse the government of wilfully disobeying the court and mocking the rule of law. Partisans of the government ask why the court has shown a zeal for pursuing matters that embarrass or incriminate the government while other institutions and political parties rarely find themselves under judicial scrutiny. Both sides are right: the government has taken a political approach in dealing with its legal troubles, while the court’s methodical pursuit of certain cases has undermined a sense of even-handedness in the court’s approach.
THE NATIONAL RECONCILIATION ORDINANCE
With national elections on the horizon in 2007, Gen Musharraf was under pressure from the international community to open up the political process and move away from the ‘controlled democracy’ of the Pakistan Muslim League-Quaid (PML-Q), a party created by the army to support Gen Musharraf in Parliament. Both Benazir Bhutto and Nawaz Sharif were in exile at the time but Bhutto was the acceptable compromise between Musharraf and his Western interlocutors — the US and the UK — for returning to Pakistan. To the US and the UK, Bhutto offered a better chance at shoring up the flagging fight against militancy in Pakistan, unlike Sharif who was perceived as sympathetic to radical Islam. For Musharraf, it was enough that Bhutto wasn’t Sharif, the man who tried to oust him as army chief in 1999.
However, Bhutto had a major condition: the scrapping of corruption cases against herself, her husband, Asif Zardari, and sundry Pakistan People’s Party (PPP) leaders. The cases had worked both to create serious legal hurdles for the return of Bhutto to power as well as a stick for PPP opponents to politically beat up on the party. So Bhutto wanted her legal woes cleared before her return to Pakistan and thus was born the National Reconciliation Ordinance (NRO).
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The NRO offered a sweeping amnesty to Bhutto and her allies, clearing the way for her return |
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Promulgated by Gen Musharraf using his authority as president of Pakistan in October 2007, the NRO offered a sweeping amnesty to Bhutto and her allies — and thousands of bureaucrats and other politicians who benefited from the terms of the ordinance — clearing the way for her return to Pakistan on 18 October. A blunt political solution to complex legal problems, the NRO immediately became a lightning rod for criticism. Some of the criticism was politically motivated — deals between politicians and generals are commonplace in Pakistan, including the one that allowed Nawaz Sharif to leave for exile in return for pledging to stay out of politics for a decade — but the NRO was an egregious piece of legislation that thumbed the courts in the eye. No plausible legal theory validated the selective disposal of cases against politicians and public officials simply because political expediency demanded it.
Once Iftikhar Chaudhry was finally reinstated to the Supreme Court in March 2009, the NRO was always going to be in the court’s cross-hairs. After giving the government a chance to convert the Musharraf-era presidential ordinance into legislation approved by Parliament — an opportunity the government tried to avail but was then thwarted from doing at the last minute by a coalition ally in Parliament — the Supreme Court declared the NRO null and void on 16 December 2009 and ordered the government to reopen all cases closed under the NRO.
The Supreme Court judgment was legally sound —the NRO had only the thinnest of legal patinas applied to it — but the court also evinced an inordinate amount of attention in one particular case: a kickbacks scandal involving Swiss accounts allegedly traced back to Bhutto and Zardari. What the court demanded is that the government write to Swiss authorities asking them to reopen the case, consigned to legal limbo by Musharraf’s legal team during the NRO negotiations.
The crux of the PPP’s complaint is this: with 8,041 beneficiaries of the NRO, why is the court seemingly singularly focused on the reopening of a case against President Zardari? In fact, the very reason the prime minister has been issued an extraordinary summons to the Supreme Court and could possibly be convicted for contempt of court is the government’s refusal to write the letter the court has demanded to Swiss authorities.
But the PPP has certainly helped perpetuate the crisis with the court. In over two years of hearings related to the NRO, at no point has the government offered anything resembling a legal defence inside the courtroom. The government made no attempt to justify the NRO, has not explained why the Supreme Court orders cannot be implemented, has not claimed immunity for the president, and has tussled with the court over other matters, including manipulating a court-mandated corruption investigation into the son of a senior coalition ally. In addition, in an interview with Geo News, the popular private TV channel, in early January, President Zardari flatly announced that his government would not move to reopen the Swiss bank case because it would amount to a ‘trial of the grave of Benazir Bhutto’.
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When it comes to the court, recent developments have imbued it with a messianic zeal |
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AN UNHOLY ALLIANCE
In Pakistan, where a thousand tales of conspiracy are born every day and enmities and animosities are legion, the PPP and its supporters are convinced that the court is acting as part of a wider conspiracy to undermine a PPP government yet again. The most recent ‘evidence’? The court’s activism in the bizarre ‘Memogate’ conspiracy — a peculiar tale, even by Pakistani standards, of an unsigned memo sent to the US government through an American interlocutor offering on behalf of civilian authorities in Pakistan a series of concessions on national security and terrorism terrorismrelated issues in return for helping stave off a coup the Pakistan Army was allegedly planning after the 2 May 2011 American raid in which Osama bin Laden was killed on Pakistani soil.
After the Pakistan Army demanded and received the resignation of the Pakistani ambassador to the US, Husain Haqqani, a close associate of President Zardari and the man alleged to be at the centre of the ‘Memogate’ affair, the PML-N petitioned the Supreme Court to inquire into who authorised and authored the memo. The Supreme Court quickly swung into action, triggering a chain of events that led to the army chief, Gen Kayani, and the director-general of the ISI, Gen Pasha, submitting statements in the Supreme Court that alleged the memo had attempted to undermine national security and ‘lower the morale’ of the army and the prime minister warning in retaliatory speeches about a ‘state within a state’ and accusing the army principals of acting ‘unconstitutionally and illegally’.
Unusually, the Supreme Court appointed a high-powered judicial commission to investigate and report back within four weeks on the ‘origin, authenticity and purpose of the memo’. The Supreme Court’s actions led the lawyer of Husain Haqqani, Asma Jahangir, a highly regarded jurist and international human rights activist, to quit in disgust, telling the media: “Invisible forces want their desired judgment. So, I don’t want to waste my time by preparing the case.”
For PPP supporters, four years of subterfuge and stealth by its opponents have finally broken out into the open: the army, the Supreme Court and the political opposition are working together to bring the government down and shut the PPP out of power again. With direct military intervention unlikely since Sharif awaits his turn to run Pakistan and the courts under Chaudhry unlikely to validate a coup after having fought off Musharraf in 2007-08, a strategy of a death by a thousand cuts has been devised, the PPP argues.
However, while a confluence of interests between the army, the courts and political opposition is discernible, there do appear to be separate motives at work. Particularly when it comes to the court, the legacy of the lawyers’ movement and the epic struggle to reinstate a chief justice who challenged a military dictator, appears to have imbued the court with a messianic zeal. Historically, the Pakistani judiciary has been manipulated by civilian governments and trampled by military leaders. For a Supreme Court to assert its place within the constitutional scheme of things inside Pakistan, it has to prevent both the civilian government and the army from encroaching on its space and it has to keep the public on its side. Offence, then, has become the best form of defence — by making a government yield even when the fate of its leader is at stake, for example — and popular support a crucial pillar of support.
In defying the court, the PPP has challenged the court’s perception of itself and undermined the public support it has cultivated as an institution that is both respectable and respected. As Chaudhry said in the hallowed precincts of Harvard Law School in November 2008, “Pakistan’s judiciary desires to transform Pakistan. And you must help Pakistan transform itself. Rule of law is Pakistan’s national consensus. And we must all side with Pakistan’s national consensus.”
This week, the PPP government could find itself a high-profile casualty of the transformation the judiciary seeks to lead.
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