Yousuf Raza Gilani is creating history of sorts: With just one month to go before he completes his fourth year in office, he is already the longest serving prime minister of Pakistan. With a mix of luck, guile, compromise, concessions and even confrontation, he would expect to pull off another historical feat — of surviving his full constitutional term in office.
His chances of success appear to be slim. When the opposition took the memo issue to the Supreme Court late last year and the army chief Ashfaq Parvez Kayani and Inter-Services Intelligence (ISI) chief Ahmed Shuja Pasha supported a judicial probe into the affair, everyone thought time was up for Gilani and his government as well as President Asif Ali Zardari. When Chief Justice Iftikhar Muhammad Chaudhry appointed a high-powered judicial commission to probe the memo case, and followed it up with a string of contempt of court notices to senior government functionaries, including Gilani, the end was deemed nigh.
Many thought that the prime minister and other members of his ruling Pakistan Peoples Party (PPP) were making a bad situation worse by indulging in a war of words with the military. From his December 2011 speech in the National Assembly, warning that he will not allow a state within a state to exist, to his statement to the Chinese media that Kayani and Pasha acted illegally and unconstitutionally by contradicting the government version of the memo in front of the Supreme Court, Gilani was either bluffing or calling the other side’s bluff. In any case, he was certainly living dangerously.
It all now appears to have receded behind closed doors. Gilani has retracted his belligerent statements against the military and intelligence chiefs, of course, after claiming the not-so-prized scalp of the defence secretary as a face-saving measure. The memo probe appears destined for the long haul and contempt and corruption cases are subject to procedural adjournments and legal hair-splitting among the lawyers and the judges. From being on the brink only days ago, Gilani looks like he is back in charge — for the time being at least.
But this could well be a temporary respite, not a permanent reprieve, for none of the factors nagging and troubling the government have gone away and many, if not most, of them are for the courts to take care of one way or the other.
Seeds of distrust
Even before the PPP came to power in February 2008, it had reason to feel threatened by the superior judiciary under Chief Justice Iftikhar Muhammad Chaudhry. When General (retd) Pervez Musharraf sacked him a second time on November 3, 2007, Chaudhry had already drawn first blood vis-à-vis the PPP. On October 12, 2007, he admitted petitions challenging the National Reconciliation Ordinance (NRO) and, in an extraordinary order, immediately suspended the actions being taken under the ordinance without first deciding whether it was legal or otherwise. It was extraordinary in the sense that normally courts do not question the effects or benefits derived from a law while it is still being debated in the courts, says Justice (retd) Tariq Mehmood, a senior jurist and a senior leader of the movement for the restoration of Justice Chaudhry.
It was only days after February 2008 polls when the Musharraf-appointed Supreme Court under Justice Abdul Hameed Dogar modified the order, allowing the NRO to end thousands of cases related to alleged corruption and other crimes. For the PPP, the ordinance was critically important as it had allowed its senior leadership, including Benazir Bhutto, to return from exile in October 2007 and participate in the political process. Stung by his previous decision on the NRO, the party led by Zardari post-election resisted the restoration of Chaudhry as much as it possibly could after coming to power. It feared that the Supreme Court under him would revive cases against the senior PPP leaders, thereby putting its nascent government in trouble.
Months before he became the president of Pakistan, Zardari started reneging on his political commitment with the Pakistan Muslim League-Nawaz (PMLN) on the restoration of the judges sacked by Musharraf, more specifically Chaudhry. The government also did not want to sideline Dogar, in return for his pro-NRO judgement. It was not until the lawyers and the opposition parties took to the streets Punjab and Dogar’s tenure came to an end in March 2009, that the government restored the chief justice, reportedly under pressure from the military establishment.
The damage had been done by then. Constitutional lawyer Salman Akram Raja believes the government spent too much political capital resisting the restoration. “Immediate restoration of judges was a golden opportunity for the PPP government to win huge political goodwill, which it lost wholly unnecessarily,” he says.
During the second phase of the NRO case in December 2009, Chaudhry struck down the NRO as void ab initio, ie illegal and unconstitutional from the moment it was promulgated, thereby immediately reversing and annulling any benefits it had ever accrued to anyone. The court also ordered the revival of cases against the PPP leadership in and outside Pakistan, most notably in Switzerland. For the party and the government, this was a frontal assault.
Earlier the same year, the Supreme Court decided constitutional petitions by the Sindh High Court Bar Association and others over the appointment of judges under the Musharraf’s emergency rule as well as the PPP government before March 2009 and sent home more than 100 judges. Many of them were considered sympathetic to PPP. The court has not looked back ever since. One case after the other involving corruption allegations against PPP members and leaders and senior functionaries of the government have come up before the apex court, invariably eliciting angry remarks by the judges, getting negative media coverage and discrediting the government practically on a daily basis.
The government’s strategy during the NRO case, as well as in some other cases, has mainly been to deal with them more in a political manner and less through legal means; an approach which has had mixed consequences. If the strategy was to gain time, it could be argued that the government was successful. But it did cost it heavily in terms of loss of credibility. Hounded by the media over its reluctance to restore the judges and troubled by the Supreme Court judgement in the Sindh High Court Bar Association case, says Mehmood, the government “lost all its senses”. It continued “making one mistake after the other, especially in the NRO proceedings. So much so, it did not even argue anything in its review proceedings.” Even pro-government lawyers believe the NRO case could have been pleaded more vigorously on the legal front, possibly leading to a less harsh verdict.
Baggage of history
For those on the government’s side, the judiciary is playing its historical pro-establishment role in giving anti-PPP decisions, the most flawed among them being what many call Zulfikar Ali Bhutto’s judicial murder. At one level, the present altercation remains between the two highest offices – the presidency and the chief justice – and could be interpreted in the historical context of an anti-PPP bias among the superior judiciary.
Zardari told an interviewer recently that a former PPP minister was imprisoned in the Hajj corruption case and the courts were not accepting his bail pleas even when there was no proof against him. Over the last two years, he has been demanding that the superior judiciary revisit the Bhutto trial as expeditiously as it is taking up cases with visible anti-PPP quotient.
Dr Osama Siddique, associated with the department of law and policy at the Lahore University of Management Sciences (Lums), says three historical trends concerning the superior judiciary continue to have resonance in the present context. “One, the judiciary has had an invasive and power-accumulation propensity that is also characterised by illusions of self- grandeur; two, it is historically anti-PPP and favours pro-establishment parties which was poignantly displayed in the 1990s; and, three, it has repeatedly evinced a vulnerability to direct and indirect pressures from the army.”
Resistance versus activism
For a majority of hard-core pro-judiciary types, the roots of the judiciary-government stand-off lie in the PPP’s defiance of judicial authority and its inability to ensure good governance. They cite media reports on rampant corruption within the government to show that President Zardari, Prime Minister Gilani, federal and provincial ministers and leaders and members of the PPP are hostile towards the judiciary because it is providing the lone institutional check against their real or perceived wrongdoings.
Some in the PPP, however, say the hype around corruption in the courts and the media is hampering the government from taking important economy-related decisions such as the import of liquefied natural gas (See Qamar Zaman Kaira’s interview). But this hardly justifies controversial appointments that the government had made over the last four years (mainly in Oil and Gas Development Company Limited, Oil and Gas Regulatory Authority and the Federal Investigation Agency). Certainly, many of them were avoidable.
From the judiciary’s perspective, the only way to improve governance and curb corruption is to expand judicial activism. Raja believes the Supreme Court’s expanding role must be seen in the context of the government’s credibility having been lost completely due both to its ineffective governance as well as corruption. He cites the government’s attempts to stall investigation into corruption cases around Hajj, National Insurance Company Limited (NICL) and rental power plants and argues that “in effect there exists not a single independent investigative agency in the country that will be allowed to do its work.” For him, “it is in that context that the Supreme Court’s readiness to assume [activist] jurisdiction has to be seen.”
But such expansionist judicial role has led to some unprecedented developments. When, as part of the 18th constitutional Amendment, the parliament changed the procedure for the judges’ appointment, the Supreme Court immediately struck back, forcing the legislature to enact another constitutional amendment along the lines it prescribed. In subsequent judgements, the court has all but eliminated the role of the parliamentary committee on judicial appointments subjecting its decisions to judicial challenge and review.
Last month, the court went even further in expanding its role far into the executive domain. On a petition filed by advocate Fazal Kareem Butt, who sought an assurance from the federal government that it will not remove Kayani and Pasha, the court told the Attorney General to submit in writing an assurance from the federal government that it has no such plan.
Lawyer Faisal Siddiqi argues that this expansionism is neither new nor Pakistan-specific. “Judicial activism of the Supreme Court is nothing peculiar to Pakistan. It has happened in many countries during transition from military dominance to greater democracy,” he says. “When the security establishment struggles to retain power and elected government tries to reclaim its lawful domain, it is in such times that judiciaries often expand their role.”
Others do not take such a benign view. Maryam Khan, an assistant professor of law at Lums, says “The judiciary has always exhibited a tendency to assert an exaggerated constitutional domain for itself and attempts to enhance it through its own pronouncements whenever the army goes in the background and a controlled democratic system is restored.” According to her, the court-centered development of the “public interest litigation” movement in the immediate post-Zia era of the late 1980s and early 1990s is an example of the judiciary’s strategic self-legitimation not only to assert an exaggerated constitutional domain for itself but also to reinvent its image as the custodian of constitutional and democratic values. “ … the judiciary has effectively evolved into an institution autonomous of, ascendant to, as well as deeply contemptuous and dismissive of, the political process,” she says.
Writing in the Economic and Political Weekly as early as 2009, Karachi-based political economist Haris Gazdar was even more scathing in his criticism of the judiciary and its main supporters, the lawyers. He argued that the constitutionalist pretensions of judges and lawyers were belied by their actions. “There is a pattern: media fuelled populism, encroachment upon the authority of the parliament and the executive, helping political allies, and keeping mum where core interests of the military might be involved. From a broadly-supported popular struggle against the Musharraf regime, the lawyers’ movement has morphed into a self-serving power grab,” he wrote.
Many others agree that such an expansion takes place at the expense of civilian governments and to the advantage of the military and security establishment. Former Supreme Court Bar Association president Asma Jahangir has publicly accused the Supreme Court of working “under influence of the security establishment” in the memo case. Those who support her point of view cite many long-pending cases, including those involving violence in Balochistan and missing persons, in which the apex court has never gone beyond summoning senior intelligence officials. Talking about the memo case, for instance, Sidiqqi says “unlike in the past when the army asked for legitimacy from the court, in the memo case the army is not asking for validation of its unconstitutional acts.” What it is doing, and seemingly achieving is even more troubling. “It has instead sought to increase its de facto power as opposed to its de jure power by using the judicial process.” As and when that power gets validated through a Supreme Court judgement, the army will be placed way above the democratic and parliamentary process. This in turn will put elected governments at the mercy of a security establishment controlling everything from behind the scenes, and without having to worry about law and Constitution.
(Asad Jamal is a lawyer.)