Dec 23, 2009

Putting the judiciary on trial

By Ikram Sehgal

A veteran in the business of spreading disinformation, Ambassador Husain Haqqani told CNN's Wolf Blitzer when asked whether the NRO verdict was the start of a military coup. "I hope not!" The blithe response was totally devoid of substance and guaranteed to set off alarm bells in Washington DC, in effect dragging the army into what is wholly and solely a judicial issue. Haqqani conveniently forgot to mention that he was one of those personally affected by the Supreme Court verdict. With such ambassadors of "badwill" in key world capitals representing Pakistan's interests, does Pakistan need enemies?

While the army may have had reservations about Zardari, would they have let him come to power in the first place if their opposition was visceral? By baiting the army, the Haqqanis of the NRO world are making sure that an eventual confrontation between Zardari and the army does come about. The buck stops at Zardari's desk. But Haqqani really doesn't care: he has access to enough confidential documents as ambassador to write another, book targeting the Pakistani army.

While a spate of petitions challenging the immunity given to the president under the Constitution, legal eagle Aitzaz Ahsan is right that the president is given due protection while in office. Notwithstanding the anomaly of declaration of assets not being applicable to the only holder of high public office in Pakistan, the question of his eligibility has become infructuous and thus balanced in Zardari's favour. So be it: he has spent many years in jail already, and after all he was elected by a heavy mandate. Zardari has recent successes on his beat to show, like the NFC Accord, the Balochistan Package and the war against terrorism (thanks to the Pakistani army, not to Rehman Malik). Some may not like it, but he does have the mandate from all the provinces.

Using executive authority to prevent the orders of the Supreme Court from being carried out is senseless. Suspensions of bureaucrats by the prime minister notwithstanding, the Supreme Court can direct the law enforcement agencies to comply. It can even requisition the services of the Armed Forces if need be. Haqqani was cleverly trying to pre-empt this by alluding to a military coup, this would create that perception if the Supreme Court at any time turns to the army. Gilani had painstakingly built up confidence in his person among the Armed Forces; no mean feat, that. A deliberate obstruction of the course of justice will destroy that trust. One can understand and even applaud Gilani's defence of the president. Since Zardari appointed him as prime minister in the first place, why should Gilani risk his reputation and position defending the NRO beneficiaries?

A few options exist for the solution of the present situation without putting the country into turmoil and dragging it down into chaos, unless that is the real intention of those affected by the Supreme Court ruling.

Option one calls for the president to remain in place while the NRO beneficiaries resign with immediate effect and face the due process of law. There is really no threat to Yusuf Raza Gilani's government. Without the functionaries affected by the NRO, governance will probably function better.

Option Two would not have the president resigning. But if the prime minister defied the Supreme Court ruling, democracy must be sustained by keeping the coalition government going. Nobody wants Gilani to step down, but then he has to act sensibly in the circumstances. Support for Zardari as president is possible by his following a sane policy that eschews confrontation with the judiciary. A viable modus operandi would be to replace Gilani with another PPP leader, someone with international stature like Aitzaz Ahsan, who is acceptable to the PPP rank and file as well as the opposition parties. Aitzaz Ahsan's mandate will be not only to protect the president but to make an all-parties government (maybe even including technocrats) to deal with the prevailing crisis of governance.

The president may have to go on a "leave of absence" in Option Three, with the head of the Senate taking over as acting president. The Gilani government, minus the convicted and/or the accused, can keep functioning, provided Gilani chooses the route of political sanity. If he chooses defiance, the "Aitzaz Ahsan" variable again comes into play.

Option Four is for the president to resign and the chairman of the Senate, who, unfortunately, will himself be under legal pressure because of his role in the Swiss cases, takes over as acting president, and a non-party, non-controversial person from one of the smaller provinces, someone who is acceptable to and is respected by all the political parties, the judiciary and the military is elected. Someone of the stature of elder statesman Air Marshal Asghar Khan and Lt Gen Ali Kuli Khan Khattak will do just fine. If, however, a party person is preferable, Makhdoom Amin Fahim is a viable proposition from the PPP.

Desperate measures will mean falling back on Option Five. To fight for time, Zardari will have the prime minister request the dissolution of the National Assembly, or if the prime minister balks at that, dissolve the National Assembly himself and let the government seek a fresh verdict from the electorate. This could be successfully challenged in the Supreme Court. Zardari could take a calculated risk that the PPP would not be routed in the coming elections. This gamble will certainly create turmoil. It may also envisage the use of the Sindh Card.

The final solution for the country is for judicial activism to go the extra mile. In Option Six, the president is declared ineligible, and with conditions that could lead to anarchy, an acting president duly cleared by the Supreme Court can form a national government for a mandated interim period of, say, two years having a mix of all political parties and technocrats in the cabinet, while accountability runs its full course. The Supreme Court would wield primary authority rather than the military, in the exceptional circumstances prevailing, it would be acceptable to the world and may be the pragmatic route to go. We may have a temporary period of turmoil, with a backlash of sorts from the few who will resist being accountable for their misdeeds.

By declaring the NRO null and void ab initio the Supreme Court set in motion the long (and slow) process of instilling good governance in Pakistan. Without commenting on their culpability or otherwise, the moral authority of those in power to charge any citizen with breaking the laws of the land has certainly been eroded. The aftermath of the Supreme Court verdict has put on display a mindset of their contempt for the rule of law, undercutting the credibility of civil authority and, thus, good governance. Those recommending confrontation with the judiciary are scrambling for survival not out of love for Zardari but out of a dire need for their own self-preservation, in the process they may be fatally damaging Zardari's presidency.

The Supreme Court's verdict has raised hopes among the people of Pakistan for good governance, with the prospect of accountability of the rulers becoming a matter of routine. One does not see the men of character and substance in the Supreme Court flinching because so-called "democrats" trying to escape justice, come hell or high water, are hell-bent upon putting the Supreme Court on trial.

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