Many political analysts agree to the extent that the SC verdict has “invented” a new mechanism to oust a government without the involvement of the Parliament at a time when Article 58(2)(b) is no longer in the statute books and the military is no longer willing to get directly involved in politics. For Dr Hasan Askari Rizvi, a political analyst based in Lahore, the present political situation is similar to a military coup in many respects. “The Supreme Court removing a prime minister is just like the army removing a prime minister. The army always created justification for its coups; in the same manner now the court has created justification to remove a prime minister,” he says.
When the Herald asks Rizvi to comment about the scenes of jubilation in different parts of Pakistan over the ouster of a prime minister who was seen as being both corrupt and inefficient, he responds by referring once again to military coups. “The present situation is similar to what happens following a military coup; public opinion gets divided: some people distribute sweets while others condemn the generals for launching the coup. The same thing is happening now.”
Given the history of institutional imbalance in the country, where powerful unrepresentative institutions have ousted elected representatives more than once, it is likely that the SC verdict will further shift the power balance in favour of non-representative and non-elected institutions. Some analysts and jurists tend to agree that the consequences will be similar to those brought about by past sackings. In the long run, Rizvi says, “the judgement has damaged parliamentary democracy as much as a military coup [would have]”.
Dr Mohammad Waseem, a senior teacher of politics at the Lahore University of Management Sciences also views the SC verdict as being akin to the sacking of governments under Article 58(2)(b) and believes that it will have serious consequences for parliamentary democracy in Pakistan. “The first implication [after the judgement] is that parliamentary sovereignty is gone. This was the effect of Article 58(2)(b) and this is the effect of the present situation,” he says.
For Rizvi, another broader implication of the judgement is that the SC has extended its mandate far beyond what is envisaged by the Constitution. “What the SC should have done is send the reference to the Election Commission of Pakistan which has the authority to disqualify the members of the Parliament. Instead it disqualified Gilani on its own,” he says. “This is actually an expansion of domain on the part of the SC.”
While legal experts do not want to draw parallels between Article 58(2)(b) and the SC verdict against Gilani, they agree that no one in the existing institutional set-up can now stop the SC from exercising the power to sack the prime minister again. S M Zafar, a senior lawyer and former Senator, disagrees with the argument that the SC judgement is akin to Article 58(2)(b) but then adds: “No future prime minister will behave like [the outgoing prime minister has] and if anybody does then he will have to face a similar judgement.”
Justice (retd) Tariq Mahmood, who was also a top-ranking leader of the movement for the restoration of Chief Justice Iftikhar Muhammad Chaudhry in 2007-2009, says legally speaking the verdict and Article 58(2)(b) “are different concepts” but “their political fallouts are similar.”
There is another, and perhaps important, dissimilarity. The SC, unlike the coup-making generals and parliament-sacking presidents, refused to take responsibility for the political implications of its decision — instead, the judges asked President Asif Ali Zardari to take necessary steps to ensure the continuity of the democratic set-up. Even if one accepts that the SC has nothing to do with the political implications of its decisions as long as they are legally and judicially sound, it is difficult to ignore the fact that Gilani’s sacking and the prospects of a similar fate awaiting the new prime minister has certainly pushed the existing democratic and parliamentary set-up further towards the brink.
The next moves
On June 27, the SC directed the Attorney General of Pakistan to obtain a written reply from the new Prime Minister Raja Pervez Ashraf by July 12, 2012 if and when he will implement the court’s order to write a letter to the Swiss authorities for reopening of cases against Zardari. Ashraf, in the meanwhile, has already stated that after becoming the prime minister he will not write the letter because he believes Zardari enjoys constitutional immunity from legal proceedings both inside and outside Pakistan.
For legal experts, this means that Ashraf will face the same Gilani-like situation, the difference is that the court may not take as many months as it did earlier to disqualify the new premier after his refusal to write the letter. They point out that the court may no longer follow the earlier process of issuing a verdict and then waiting for a ruling by the Speaker of the National Assembly. So Ashraf’s disqualification, if and when it happens, may take a few weeks rather than many months. “Perhaps this time, the court can directly come to the point of disqualifying the Prime Minister if he disobeys the court order,” says a senior constitutional lawyer in Islamabad.
The PPP and its partners in the ruling coalition have so far emitted mixed signals about their course of action following Gilani’s dismissal. On the one hand, they have implemented the SC verdict against the outgoing premier, while on the other, they say they have not accepted the judgement and have reservations about it given that it appears harmful for democracy. Reports suggest that in the coming sessions of the National Assembly, many ruling coalition legislators may wish to indulge in a heated, perhaps even a nasty debate about the verdict against Gilani.
Will the ruling coalition let another prime minister fall due to another SC verdict? Nobody in the government is ready to give a direct answer. “The government will try to buy as much time as is possible before it takes any decision,” says a senior bureaucrat in Islamabad.
Independent analysts point out that buying time will not be easy for a government which is already reeling under the weight of its own inefficiency in tackling the economically crippling energy shortages and which is hobbled by unrelenting allegations of large-scale corruption among its ranks. Pointing out that the “government is fast losing credibility and legitimacy,” Waseem says that “the SC verdict is not a one-time neutral step but it has the effect of [further] weakening an already weak government.”
Acoording to a senior bureaucrat the only way for the government to neutralise the consequences of the court’s recent and future actions is to sit with the opposition and decide on a unanimous road map for early elections. For example, he says, the government and the opposition should agree on who will run the caretaker government in the run-up to the election; they should also be able to unanimously decide on the next chief election commissioner and, most crucially, on what role Zardari will have in the caretaker administration. If the system falls before the two sides have agreed on these issues, they risk losing out to the unelected institutions, which will then decide who will be in the caretaker government and the Election Commission.
While the government has given no solid indication that it is willing to cross the bridge and sit with the opposition to negotiate and settle these crucial issues, the opposition too seems focused on immediate gains rather than thinking about long-term political stability and democratic institutionalisation. In private conversations, the leaders of Pakistan Muslim League-Nawaz (PMLN), the main opposition party, admit that the disqualification of a prime minister by the SC will hang like the sword of Damocles over the heads of all future prime ministers but in their public statements they don’t want to be seen as supporting, even indirectly, a beleaguered government. Former prime minister and current PMLN chief Nawaz Sharif, who knows from his experience of confrontation with the judiciary in 1997 that there are no easy ways of emerging from such an imbroglio, told a television interviewer recently that Gilani’s sacking was “real accountability”.
“It is true that the Parliament is not expected to be a trade union or a regimented force that would act in unison in any crisis situation — after all, dissent and differences are the essence of a parliamentary democracy,” says a PPP legislator. Still, one would expect a collective response from the government and the opposition when the very essence of parliamentary democracy is under threat, he adds.
There are certain voices outside the Parliament arguing that the SC should handle the situation with caution. Senior lawyer and human-rights activist Asma Jahangir has suggested that the SC should send the letter to Swiss officials on its own, through the office of its registrar, without involving the government and thus avoiding the possibility of putting another prime minister on trial.
Mahmood, while he believes that it will be extremely difficult for the judiciary to send another prime minister home, wants everyone to avoid the possibility of a repeat of Gilani’s sacking. “That will have far serious implications for the system,” he says.