Dr. HasanAskari 

Lahore

  No matter what is the outcome of the current confrontation between the elected executive and the judiciary, the risk of the collapse of the present democratic system has increased.

   Most political activists claim to be the supporters of democracy and elections. However, they are not prepared to recognize the basic ingredients of democracy that cannot be limited to elections. Democracy also requires constitutionalism, equal citizenship, civil and political rights and primacy of the elected over the non-elected.  Some groups, especially the Islamists, view democracy as an instrument to pursue their ideological agendas.   

  The current debate in Pakistan on the confrontation between the federal government and the Supreme Court is a good example of how narrow partisan interests are being advanced in the name of democracy. Each group’s stand on this confrontation represents its political power interest or political agenda. But, it is couched in democratic jargons.

   The basic principle of democracy is that there is precedence for the elected institutions and processes over non-elected institutions and processers. Institutional imbalance is dangerous for democracy and the rule of law. In the past the military attempted to dominate the elected executive. Now, it is the Supreme Court that is pursuing this strategy.

  Different political parties and lawyers are adopting positions on this issue on the basis of their political loyalties. All politically active people belonging to or supportive of the PMLN, the PTI and the Jamaat-i-Islami support the Supreme Court and want the Chief Justice and other judges to remove the federal government because their parties cannot change the government through the parliament.  The lawyers with support from these parties are staging rallies in favour of the Chief Justice and describe the new Contempt of Court Law as anti-independence of judiciary and anti-Islam.

  Those supporting the PPP and its allies are worried about the attempts by the Supreme Court to extend its domain of authority at the expense of the elected executive and parliament.

   Both sides invoke democracy to support their perspectives. The pro-Judiciary political parties and lawyers argue that independent judiciary is a must for democracy and that the policies of the PPP aim at undermining the Supreme Court.

  The PPP and its allies also invoke democracy to criticize judicial activism of the Supreme Court that invariably targets the federal government, they argue. They think that the superior judiciary is stepping out of its official domain and want to undermine the elected civilian government and the parliament.

  The Supreme Court and its supporters argue that the orders of the Supreme Court for writing the letter to the Swiss authorities for starting corruption related proceedings against President Zardari must be obeyed by the Prime Minister. The PPP-led federal government argues that article 248(2) of the Constitution gives immunity to the President from initiation or pursuance of criminal proceedings and thus the federal government cannot write a letter.

  The Supreme Court has bypassed this article and asked for action against the sitting president. It wants the President to approach the Supreme Court if he wants to invoke presidential immunity.

  The Supreme Court has removed one prime minister and it has now put the new prime minister on notice for writing the letter. The language of its order on July 12 appears threatening in case the prime minister does not write the letter by July 25.

  The new contempt law protects the prime minister against the contempt of court. It seems from the position taken by the Supreme Court on July 12, it is likely to declare some of the operative parts of the new Contempt of Court Law as unconstitutional and proceed against the new prime minister for contempt of court. If the Supreme Court adopts this course of action, it will take two-three weeks in deciding the matter.  

  However, if the Supreme Court decides to take direct punitive action against the prime minister, i.e. remove him and put him in prison, it will create a major political crisis. The Supreme Court does not have direct power to remove an elected prime minister. Therefore, it cannot take such an action without the support of the military whose quiet or open support will be needed to take direct action against the elected prime minister.

  The Supreme Court will have to stretch its power to force new elections on the government. It cannot dissolve the National Assembly for new elections. However, it may seek the support of the military to force the government to go for new elections.

   The PPP and its allies may bring-in another prime minister after the disqualification of the second prime minister by the Supreme Court. They can carry on until March 2013 when the term of the National Assembly expires. However, given the political and economic crises, the PPP-led government may not last until March 2013. The whole system may collapse.

   Another option would be that the federal government opts for holding new elections by November-December. This will be the most democratic way of dealing with the present crisis. The new government with a fresh mandate will deal with policy matters. Still another option is that the Supreme Court and the Army top brass join together to replace the federal and provincial governments with new technocratic governments for an extended period agreed with some political parties. This will be an extra-constitutional measure

  No matter what is the outcome of the current confrontation between the elected executive and the judiciary, the risk of the collapse of the present democratic system has increased.