Pakistans government dodged a bullet last Thursday as the prime minister escaped immediate sanction for failing to implement a Supreme Court order to seek the reopening of a corruption case against President Asif Zardari. But the long-running saga of tensions between Pakistans SC and the ruling Pakistan Peoples Party (PPP) has entered a decisive phase and the legal options for the government appear to be few,if any.
In 2007,when Benazir Bhutto negotiated her return to Pakistan with Pervez Musharraf,her main demand was the scrapping of corruption cases against herself,her husband (Zardari) and sundry PPP leaders. Musharraf was under pressure from the international community to open up the political process. Of these expediencies was born the National Reconciliation Ordinance (NRO),a blunt piece of presidential legislation which allowed the termination of cases/ investigations against anyone who had held public office between 1986 and 1999.
The PPPs problems began when the deposed chief justice of the Supreme Court,Iftikhar Muhammad Chaudhry,sidelined by Musharraf in 2007,was reinstated by President Zardari in March 2009 under pressure from the political opposition led by Nawaz Sharif and the historic Lawyers Movement. The NRO was a prime target of the judiciary under Chief Justice Chaudhry,and by December an SC bench declared the NRO illegal and ordered cases against the 8,000-odd accused to be reopened.
The court showed an inordinate interest in one particular case: a kickbacks scandal involving money deposited in Swiss accounts in return for a contract dating back to Bhuttos second term; the beneficiaries were alleged to be Bhutto and Zardari. This case,investigators believe,is the one in which there is a smoking gun. So the SCs insistence that the government of Pakistan write to the Swiss authorities to rescind an intimation by Musharrafs attorney general that Pakistan was no longer interested in being a party to the case,could have serious implications for Zardaris future.
The judiciary wants the government to write a letter to Swiss authorities stating that the pre-NRO position of the government of Pakistan,that is,as a civil party to the criminal case against Zardari and a business associate,has been restored while the PPP-led federal government has refused to write a letter that implicates its leader,Zardari,in a corruption scandal.
Zardari has constitutional immunity against criminal prosecution while in office. But the SC order could be interpreted as falling outside the immunity clause,given the Pakistani government was a civil party to the case in Switzerland. Bhutto and Zardari were convicted by a trial court in Switzerland but the conviction was set aside on technical rather than substantive grounds and the case has lain dormant since.
The court seems determined to get its order implemented. Gilani was summoned to explain why contempt of court proceedings should not be initiated against him a conviction that would cost him the prime ministership over his governments refusal to implement the NRO judgment in totality.
In a move to appease the court,Gilani drafted in Aitzaz Ahsan to defend him,Ahsan being the PPP stalwart who championed the restoration of CJ Chaudhry. Ahsan argued before the court that the PM had not committed any contempt because he had been advised by his legal team that the president had immunity and so the PM had acted in good faith in not authorising his government to write a letter to the Swiss authorities.
But the contempt hearings are a sideshow: the court appears to want the government to argue the president has immunity,the only plausible defence. It is also a defence ultimately unlikely to work. With 17 judges of the SC having instructed the government to write a letter to the Swiss authorities in the NRO judgment of 2009,it seems inconceivable the court will now find that it misdirected the government by not taking into consideration the issue of presidential immunity.
So once the government has exhausted its legal options,it will have to confront either writing the letter to Switzerland or having the PM and president possibly sanctioned and disqualified from holding public office.
The stage is set for a highly destabilising confrontation between the judiciary and the government. The PPP will try and buy time to conduct the Senate elections in March and general elections due by early next year. But the court,fuelled by the legacy of the Lawyers Movement and a messianic,transformative vision,will want to prove it can bend anyone,even the most powerful,to its will.
The writer is an Islamabad-based assistant editor with Dawn