Steps to a soft landing

By Asif Ezdi

The writer is a former member of the Foreign Service

The announcement made by the government that it is withdrawing the bill seeking parliamentary approval for the NRO has defused the immediate crisis over the fate of the legislation, but it has by no means taken the country out of turbulent political waters. An even bigger crisis lies ahead if, as widely expected, corruption cases against Zardari are now reopened. The clock is already ticking.

Zardari stands isolated and beleaguered as never before. His options are dwindling fast and the fear is that in his desperation he will not shrink from taking reckless steps that could shake the country’s democratic system to its foundations. At the very least, he can be expected to resort to political manoeuvrings of all sorts to keep himself afloat. As he flails about to get out of the quicksand in which he is now trapped, the country will be kept on edge during the coming days and weeks.

Zardari has only himself to blame for his predicament. Although deeply mired in graft charges dating from Benazir’s two terms as prime minister, he surrounded himself after moving into the Presidency with others with similarly shady reputations and pasts. Reports of opaque business deals under the new government have proliferated. Zardari has himself been implicated in the purchase last March of 300 acres of land near Islamabad at a fraction of its real value. According to a Reuters analysis dated Nov 3, the consensus view is that corruption in Pakistan has worsened significantly since the transition from military to civilian rule.

Zardari has again failed to judge the public mood. In the face of growing public clamour to dump the NRO, he tried to ram through the Parliament a bill that would not only have given amnesty from graft charges to holders of public office between 1986 and 1999 but, for all times, to everyone if they could show that they had been implicated for political reasons. In other words, the bill would have given a permanent license to loot to all past, present and future looters of national wealth. As explained by some of Zardari’s acolytes, all this was to be done in the name of the fundamental constitutional right to equality!

The entire political scene has now been radically transformed by the completely unexpected decision of the MQM, the largest ally of the PPP in the ruling coalition, to vote against the NRO. Zardari’s hectic efforts since then to change the mind of the MQM have so far yielded little results, but there are still three weeks left before the 120-day period given by the Supreme Court for the approval of the ordinance runs out. As British prime minister Harold Wilson said, a week in politics is a long time. This is even truer of Pakistani politics.

If Zardari fails to win over the MQM, one option before him, theoretically, would be to promulgate the ordinance again with retrospective effect from February 2008. But there is a catch here. He can do so only on the advice of the prime minister, and that may not be forthcoming readily. Gilani has been noticeably unenthusiastic about getting parliamentary approval for the NRO and it is unlikely, in view of the MQM stance and overwhelming public opinion against the ordinance, that he would favour its re-issuance. If Zardari still insists, a clash between the offices of president and prime minister, in which public opinion would be with the prime minster, would be difficult to avoid and it would not be in Zardari’s interest.

Zardari will only be able to escape prosecution by invoking the immunity given to a sitting president under Article 248. Aitzaz Ahsan has said that the Pakistani constitutions of 1956 and 1962 also gave the president complete immunity from criminal proceedings. He is wrong as far as the 1956 constitution is concerned. Article 213 of the 1956 constitution stated that the president was not answerable to any court for any act done in the performance of his official duties. But there was no blanket immunity for acts done in his personal capacity. Earlier, the Basic Principles Committee of the Constituent Assembly had also proposed in 1954 that there should be no bar to legal proceedings against the head of state even during the tenure of his office for acts done in his personal capacity.

The comprehensive immunity given to the president under Article 248 is a vestige of the privileges given by the Government of India Act of 1935 to the viceroy. It has been retained in the Indian Constitution but there is no other democratic country in which an elected head of state or government is exempt from the jurisdiction of the courts. A proposal has been made to the Parliament’s Special Committee on Constitutional Reforms to withdraw the immunity given to the president for acts performed in his personal capacity and to substitute the language of Article 248 by that of the 1956 Constitution. The PML-N has also spoken of limiting the president’s immunity to official acts, but is not pursuing this proposal seriously in the committee.

The government’s policy is to expand, not restrict, the privileges of the political class. The new accountability law that will replace the NAB Ordinance has fittingly been called NRO-II. It will not apply to the sitting president, deletes wilful default in repaying a bank loan as an offence, provides for amnesty if a charge is not brought within three years after a person leaves his post, and gives immunity for acts done “in good faith.” This law will also incorporate Sections 4 and 5 of the NRO. This means that a Member of Parliament accused of corruption may not be arrested without the recommendations of a parliamentary committee to be set up for the purpose being taking into consideration. Knowing how our parliamentary committees function, this amounts practically to granting immunity to our legislators from arrest on charges of corruption.

As the Zardari camp has been saying, it will not be possible to resume criminal proceedings against him because of Article 248. But morally and politically his position will be completely untenable. Pakistan will become the only country in the world with a head of state implicated in graft running into hundreds of millions of dollars. It is inconceivable that cases against all others charged with corruption are reopened while Zardari happily continues to enjoy life in the Presidency. The safest course for him, therefore, would be to take a one-way ticket out of Pakistan. The other option – being dragged out kicking and screaming – would be far worse, for him and for the country.

Zardari’s departure need not – indeed, it should not – result in the fall of the PPP-led federal government or in midterm elections. That is the last thing the country can afford at this time. As anyone can see, Zardari’s time is up. His political obituaries are already being written. The task before the nation now is to make the transition as smooth and as short as possible. All political parties, in the government and in the opposition, need to cooperate in averting a sudden collapse of the political system and guiding the country to a soft landing.

Two steps are needed. First, the opposition parties must give credible ironclad assurances that they do not seek midterm elections or a change of government in Islamabad. Second, the smaller parties in the ruling coalition should advise Zardari to make a sacrifice for the sake of the country. The MQM has done so already. The other coalition partners should ponder doing the same. It will be in their interest, as well as the national interest. They will enhance their own standing and restore some of the nation’s faith in the political system.