By Dr. Hasan Askari
If the Supreme Court takes the unprecedented step of directly asking the Chief of Army Staff to support the implementation of its judgment, this will provide a constitutional cover to the military to impose its rule. Pakistan’s democracy will suffer an irreparable loss and the superior judiciary will also experience loss of power and role.
The new Prime Minister Raja Pervez Ashraf has informed the Supreme Court that his government does not plan to write a letter to the Swiss authorities for re-opening of money laundering cases against President Asif Ali Zardari. His argument is that any sitting president enjoys immunity from criminal proceedings under article 248 (2) of the constitution. It is also arguing that the President does not have to seek immunity from the Supreme Court which is given in the constitution in clear and categorical terms.
The Supreme Court has neither turned down the presidential immunity nor accepted it. The Court has bypassed this issue by insisting that the federal government is not complying with an order of the court.
This has created confrontation between the Supreme Court and the federal government. YousafRazaGilani was disqualified by the Supreme Court and now the future of the Raja Pervez Ashraf is at stake. The Supreme Court resumed proceedings against Prime Minister Raja Pervez Ashraf on July 25 but the matter was postponed till August 8.
The major reason for this postponement is that the parliament has recently passed a new Contempt of Court Law which protects the prime minister and a number of other elected officials against contempt proceedings when an action has been undertaken in performance of official duties. In the presence of this law the court cannot charge the prime minister for contempt of court on the letter issue.
The new Contempt of Court Law has been challenged in the Supreme Court. It appears that the court will declare this law totally or partially unconstitutional and then move against the prime minister.
Judicial activism on the part of the Supreme Court targeting the federal government has divided the politically active circles on the role of the superior judiciary. Though both sides invoke democratic principles to support their perspectives, their positions are motivated primarily by political considerations. The PMLN, the PTI and the Jamaat-i-Islami that want to knock out the PPP-led federal government are supportive of the Supreme Court. As they cannot change the government through the parliament because they do not have the required votes, they hope that the military or the judiciary may help them to achieve this objective. The lawyer community is more or less divided on the same political lines.
The PPP and its allies criticize judicial activism of the Supreme Court because they maintain that it invariably targets the federal government. They think that the superior judiciary is stepping out of its official domain and is undermining the elected civilian government and the parliament.
Independent political observers are perturbed by the confrontation between the federal government backed by the parliament and the judiciary because it creates political uncertainty and undermines both the judiciary and the civilian institutions and processes. As more and more politically loaded issues are taken up by judiciary, it is dragged into political controversies.
Such controversies divert the attention of the government and the opposition from the problems that threaten Pakistan’s state and society. These problems will worsen as the government engages in a desperate struggle for survival. If we examine the issues raised in the courts or by the political parties in their mutual exchanges, these have nothing to do with the problems of the common people and the issues that threaten Pakistani state and society. No one, including the leaders in power is paying any serious attention to resolving these problems which include the faltering economy, electric power shortages, poverty and underdevelopment, increased violence in Balochistan and Karachi, and religious extremism and terrorism. The total focus is on justifying either the judiciary or the federal government.
The present crisis can go in different directions. If the Supreme Court declares the new Contempt of Court Law totally or partially unconstitutional, it can charge the new prime minister with contempt of court.
If the prime minister is disqualified, the PPP is expected to elect a third prime minister who will pursue the same policy. This will make Pakistani politics and judicial system a joke for political commentators.
The Supreme Court does not have power to remove the president and the government altogether. It cannot order new elections. But, if it decides to stretch its power to take some direct punitive action against the federal government, Pakistan will be faced with a major political and constitutional crisis.
Such a situation can encourage the military to step-in. Alternatively, if the Supreme Court takes the unprecedented step of directly asking the Chief of Army Staff to support the implementation of its judgment, this will provide a constitutional cover to the military to impose its rule. Pakistan’s democracy will suffer an irreparable loss and the superior judiciary will also experience loss of power and role.
An alternate way is that the Supreme Court reduces pressure on the federal government and the later works with the opposition for making necessary arrangements for the general elections which can be held in November-January.
If the present confrontation continues Pakistan will face a major constitutional and political crisis that will undermine democracy and civilian rule.