Nov 22, 2009

A question of character

The mood at the late night meeting of PPP’s Central Executive Committee (CEC) held on November 16 is said to have been sombre. Some drew parallels with Zulfikar Ali Bhutto’s last days in power. The CEC was meeting in the aftermath of the biggest crisis the party has faced since the tragic assassination of its chairperson nearly two years ago. Now, the co-chairman, who succeeded her, faces the dire prospect of being ousted from presidency. That would mean not just his fall from power but also a re-opening of corruption cases. At the end of the legal process, there is the real possibility of conviction and loss of hard-won millions.

Faced with this grim outlook, members of the CEC can only offer solace to Zardari but hardly a way out of his troubles. Instead of carrying out some much-needed self-criticism, they spent considerable time in competitive sycophancy of the co-chairman and directed their anger at some familiar scapegoats. There was reportedly a lot of media-bashing, with Sardar Assef leading the charge and even suggesting curbs on press freedom. Fauzia Wahab, never to be outdone, has now spoken also of the machinations of the Jewish lobby.

But what Zardari needs more than proclamations of solidarity from his acolytes in the party is a way out of the imminent legal tangle that awaits NRO beneficiaries at the end of the month. Before the bill for the approval of this ordinance was withdrawn from parliament, Babar Awan had declared that if it was approved, the judiciary would have no power to declare it unconstitutional. Now that the government has itself withdrawn the NRO, he advised the CEC that the best way to defend its beneficiaries was to argue that decisions already given under the ordinance were final as “past and closed transactions.”

That is the line that the Zardari camp will probably be taking after November 28. But this position is hardly tenable because Article 264 of the constitution only protects actions taken under valid laws which stand repealed. It does not protect those under a law which was invalid at the time, either because the latter had already expired or is found to have been unconstitutional. This means that only acquittals made before February 4, 2008 can be treated as ‘past and closed transactions’, and even these can be invalidated if the Supreme Court holds that the NRO was unconstitutional. Zardari will not be able to claim the protection of Article 264 because his acquittals under NRO were all pronounced after this date.

The CEC members evidently knew this. Their unanimous view was that Zardari should avail himself of the constitutional immunity available to the president under Article 248. He, of course, did not need this advice because when he decided last year to seek the post of president rather than prime minister, it was precisely because the president enjoys this immunity while the prime minister does not. When those who drafted the 1973 Constitution wrote Article 248, it was certainly not their intention to make the presidency a safe haven for those trying to escape justice. They simply lifted the language of this article from the 1962 Constitution, which for its part had borrowed it from the provisions of the Government of India Act 1935 giving immunity to the viceroy.

Whatever the interpretation of presidential immunity under Article 248 as it stands today, it is important to remove all ambiguity for the future. Ahsan Iqbal told a private TV channel on October 1 that PML-N had proposed a constitutional amendment for its abolition. However, Nawaz Sharif’s statement on November 17 that the president enjoys constitutional immunity for all criminal acts, it is doubtful whether PML-N still stands by its proposal.

Nawaz’s statement is not reconcilable with his earlier suggestion to Zardari that he should appear before the courts to clear himself of corruption charges. It is also out of tune with the predominant view within his party and with public opinion. Nawaz, therefore, owes the nation a clarification on this point. If PML-N is really serious about the proposal to do away with presidential immunity, it should give it at least the same priority as its demand for the abolition of a third-term ban for the prime minister.

Public opinion in the country certainly does not understand what justification there can be for exempting the president from the country’s penal laws. This is not simply a question of correct interpretation of a provision of the constitution. It is ultimately a question of the character and integrity of national leaders. Holders of high public office are expected to come up to an even higher standard of personal conduct than ordinary citizens. The nation is not prepared to entrust its destiny to someone who has been accused of abusing his position to pocket public money amounting to billions of rupees, and then refuses to face a trial which would give him an opportunity to prove his innocence. The demand for his ouster from office is not against a political party; it is directed at an individual.

The big question is how this can be done with least disruption to the political system. Several options have been mooted. Some of them involve judicial process while others depend on political and moral pressure. Those involving the judicial process turn on the qualifications for election as laid down in Article 62 of the constitution, in particular the graduation requirement which was introduced in 2002, but invalidated by the Dogar court in April 2008 to clear Zardari’s path to presidency. Since the Dogar court itself has now been held unconstitutional, its ruling could also be overturned by the Supreme Court on review. In that event, Zardari would stand disqualified and would have to vacate the presidency.

The option of removal by political process presents difficulties but these are not insuperable. The two-thirds majority required in both houses of parliament for impeachment is a very high bar. But if public pressure continues to build up, a formal vote may not be necessary.

The country is drifting from crisis to crisis but our political leaders are busy with their own petty games. As the Chinese philosopher Lao Tzu said, “If you do not change direction, you may end up where you are heading.” What is needed is a firm hand to change direction and steer the country to safety. Gilani is responsible for doing that. But so far he has shown neither the backbone, nor the broad shoulders, or the firm hand needed. Whether he likes it or not, he will have to grow them all very fast. He has only a few days to perform this anatomical wonder because the clock is ticking. In less than a week, cases against the NRO beneficiaries will stand revived but the government has yet to articulate a clear policy on what it will be doing about them. Gilani has to do it quickly. He has set a good example by declaring that he will resign if his wife is found to have benefited from NRO. To be credible, he should also immediately fire all those ministers and others in the government who sought to escape justice under the cover of NRO. He should ask them to stand trial and provide NAB with the financial and manpower resources needed for the investigation and prosecution of corruption cases.

Gilani should also order investigations into the Islamabad land deal scandal and the Agosta kickback affair in which Zardari has been implicated. An investigation is not a ‘criminal proceeding’ covered by the constitutional immunity of the president. If Zardari is really innocent, as he claims, then he has nothing to fear and should welcome the opportunity to clear his name.

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