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Tuesday, May 17, 2022

The troika,reconfigured

How the Pakistan army is back in the picture

Written by Ejaz Haider |
September 29, 2010 4:55:51 am

Here’s a simple view on Pakistan. A corrupt president is trying to hang on to power by the skin of his teeth; an upright judiciary is fighting to establish the rule of law and throw him out; an inefficient government is fumbling from one idiocy to another; a mature opposition is behaving like a patient parent; an independent media is acting as a watchdog; the army is smelling like a rose. Before long all will be well.

The reality is more complex. This is how the story goes.

In 2007,former General-President Pervez Musharraf promulgated the National Reconciliation Ordinance which cleansed a number of people,politicians,bureaucrats,businessmen and others,of past “wrong-doings”,supposedly a political equivalent of the legal doctrine of past and closed transactions.

The NRO was based on quid pro quo. Musharraf needed to shake hands with Benazir Bhutto and create a framework that would give him some legitimacy in his bid to stay at the centre of Pakistani politics. The price: get Benazir in so she would have the incentive to back him up,even if reluctantly. The way to do this: drop all cases against her and husband Asif Zardari,most importantly the Swiss money-laundering case.

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Even before Musharraf promulgated the NRO in October,in August the government wrote to the Swiss authorities to close the case against Zardari and unfreeze $60 million in assets.

The drama didn’t unfold as scripted. Bhutto did return but by then Musharraf had already sent packing a vaulting judiciary and thus got himself in a terrible bind. One of the reasons — though not the only one — for sacking the judges in November 2007 was the Supreme Court’s acceptance of petitions against the NRO. Bhutto wasn’t particularly pleased with the SC’s newfound activism but neither could she openly criticise them,such being the opposition to Musharraf from the street and the support for an independent judiciary.

Fast forward: Bhutto is killed,elections take place,Musharraf is ousted,Zardari becomes the president,there is back and forth and foot-dragging on restoring the judges earlier sacked by Musharraf but finally they get restored under tremendous political and public pressure. Presto! Pandora opens the box and having let off everything,is left with hope. The SC,back and all charged up,decides to exorcise Musharraf’s ghost.

The first to go was the NRO,decided last year December and struck down as void ab initio and ultra vires of the constitution. Result: all cases quashed under the NRO stood restored including,among others,the case of Zardari’s alleged Swiss misdemeanour.

The SC ordered the government to write a letter to the Swiss and tell them that the case stood open and the earlier request by Islamabad was illegal. The government has pussy-footed,arguing that the president has immunity under Article 248 (2) and the government cannot ask a foreign government to open up a case against the president who symbolises the federation.

On the issue of this letter there are two views even among the jurists. Be that as it may,the SC seems clear that the government is violating its orders. The government has been alternating between defying the court and surrendering to it using procedural excuses to buy time. For instance,on September 27,the government had first decided to present a summary — signed by the prime minister — before the SC,saying the letter could not be written and the court’s demand violated the constitutional provision of presidential immunity. Then,early morning,it changed tack and pleaded before the court to give it some time to write the letter.

Partly because of the growing activism of their Lordships,partly because of the masochism of the government,the situation has become absurd. Into this has crept the ultimate arbitrator of Pakistani politics — the army.

This is a point lost on many,notably on their Lordships,who should remember that they got restored at the behind-the-scenes intervention by the army chief,General Ashfaq Kayani.

The man who,before the February 2008 elections,told some of us at a dinner that he wants to stay out of politics and will keep the army out too,has not only managed to revive the image of the army — which had taken a beating under Musharraf — but got himself and the institution firmly back in the saddle,thanks to political bickering and judicial activism,compelling the government and other actors to use him as the final arbiter.

On Monday morning,he was with the president and the prime minister. It was in the backdrop of that meeting that the government requested the SC to adjourn hearing on the issue of the letter and the SC obliged. There’s a lesson in this. The executive-judiciary tug-of-war,far from either strengthening the judiciary or consolidating political supremacy,may be working against both.

The writer is Contributing Editor,‘The Friday Times’,Lahore. Views are personal.

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