By Amir Zia
Monthly Newsline
July 2012
The frail democratic system is indeed creaking under the weight of heightening government-judiciary tussle. There are genuine fears not just about its future, but also about the state’s viability and writ that has been shaken to the core due to the many years of misgovernance and misrule and the growing challenge of extremism and terrorism.
It is now a guessing game; how long can Raja Pervaiz Ashraf survive on the wicket as prime minister? If all goes well, though few are likely to bet on it, Ashraf will be in the prime minister’s house for not more than eight months before the hurly burly of elections starts and an interim set-up takes over. But if the judiciary strikes again, which remains the most likely scenario, his days are numbered. His exit could be in a couple of months at the most, or even in a few weeks.
The country’s executive and judiciary have already laid their cards on the table. The new prime minister has categorically announced that he, like his predecessor, will not write to the Swiss authorities regarding the opening of graft cases against President Asif Ali Zardari. Yousuf Raza Gilani chose to be disqualified rather than follow the Supreme Court verdict on the National Reconciliation Ordinance (NRO) case. The Supreme Court has now given the new prime minister the deadline of July 12 to formally indicate whether he will ask the Swiss authorities to reopen cases against President Zardari, who, the Pakistan Peoples Party’s constitutional and legal experts maintain, enjoys immunity from prosecution as head of state.
Between these two inflexible positions there appears to be no middle ground. It is either “my way or the highway.” The country is thus destined to remain in the throes of political uncertainty and strife for the foreseeable future, as two of the important state institutions remain openly at loggerheads. Although the other institutions, including the mighty military establishment, declare neutrality, they continue to operate from the shadows, as they have been doing since the return of democracy to the country – sometimes showing restraint and at other times working as a catalyst in determining the course of events.
The opposition – from the Pakistan Muslim League (N) to Imran Khan’s Tehreek-e-Insaf, and marginal players like the Jamaat-e-Islami – have their daggers drawn for an early ouster of the PPP-led government, even if it means cutting short its five-year term by only a few months. The opposition is the foremost cheerleader of the judiciary, along with the mainstream media which is serving as the main battle tank trying to clear and mould public opinion against the government.
The frail democratic system is indeed creaking under the weight of this heightening tussle. There are genuine fears not just about its future, but also about the state’s viability and writ that has been shaken to the core due to the many years of misgovernance and misrule and the growing challenge of extremism and terrorism.
No wonder Islamabad remains rife with rumours, with political pundits, experts and analysts drawing out different future scenarios for the country – from the ouster of this government through direct military intervention, to its removal through the judiciary and the induction of a set-up comprising technocrats and relatively clean politicians. The buzz around town is that some kind of Bangladesh model is being created. Critics meanwhile, contend that this is doomed to fail having already been tried, tested and found defective. The grinding of rumour mills aside, the underlining point is that most doubt the continuity of this democratic setup.
Zahid Hussain, senior analyst and author, says that the noose appears to be tightening around the PPP. “Zardari has saved the government from falling temporarily, and in doing so has increased the PPP’s reliance on its allies manifold, especially the PML-Q (Pakistan Muslim League Quaid-e-Azam group), but the crisis remains very much there.”
He continues, “Despite compromises, the question is, will this alliance survive in the mid to long run? Zardari accepted the verdict (of Gilani’s disqualification) because of the pressure of his coalition partners. These compromises will lead to other compromises…the situation is tenuous and this critical tight-roping cannot work for long.”
Government circles, however, remain hopeful that they will once again prove successful in defying prophecies of doom as they have managed to do in the past, complete their five-year term, hold elections and return to power. This view may appear almost unbelievably optimistic, but PPP stalwarts say that their support in the rural areas, which consistitutes the majority of the vote bank, remains intact due to this government’s pro-agriculturist and farmer policies and pro-poor programmes. In the urban areas, they maintain they still retain their support base, along with help from their allies.
Meanwhile, the routine conciliatory statements of top government officials towards the judiciary, replete with obsequious vows of respect for its authority, for the rule of law and the desire to avoid a clash of the institutions, appear deceptive as many of the government lawmakers, second-tier politicians and supporters aggressively accuse the superior courts of trying to stage a ‘judicial coup,’ of activism and of infringing on the grounds of the executive.
Perhaps in defence of the abysmal failure of governance witnessed in the past four years, the Pipliyas also keep highlighting the fact that the coalition government has been kept on the ropes since the start of its term, with the judiciary serving at the vanguard of the assault. From the National Reconciliation Ordinance (NRO)-related cases, that include the implementation of the courts judgment to that of Zardari concurrently holding the two positions of head of state and party co-chairman, the cases against Zardari are being cited by government loyalists as merely the tip of the iceberg that aims to sink the PPP-led coalition. Other roadblocks, which have made it difficult for the government to run even mundane day-to-day affairs, government officials contend, include the scrapping of the executive orders regarding appointments for senior positions, and efforts by the superior courts to micro-manage who should represent the government or investigate high-profile corruption cases against its senior members and their relatives. “The superior judiciary even tried to fix sugar prices rather than leaving it to market forces, and has kept the executive in the dock in regard to various high-profile cases, including that of missing persons, rental power and privatisation,” says one PPP official.
Senior PPP politician Taj Haider contends that Zardari is the actual target of all the attacks, but the PPP has so far managed to divert the frontal assault on him. “Gilani took the shot aimed at him, and we have shown that the PPP and its allies have no dearth of candidates for the slot of prime minister. We are all set to complete our term and Zardari will be president even after the elections. This scenario has made our opponents nervous. They are now getting desperate,” he says.
But the bravado and defiance of the PPP leaders and their allies have failed to impress detractors. They argue that the judiciary’s firm stance against the government’s open efforts to undermine the law, misuse its power and penchant for corruption and nepotism has proved, at least in part, a successful deterrent and prevented the government from going even further overboard in its wanton abuse of power.
As proof of this they cite the NRO case, in which the judgment to strike down the ordinance was announced unanimously by the Supreme Court judges in December 2009, and the government confessed in writing that the controversial ordinance was indefensible and unconstitutional.
“Despite having a two-third majority at that time, the government failed to have the NRO validated by parliament because it was discriminatory and unconstitutional,” says former law minister Iqbal Haider. “This shows that the Supreme Court judgment on the NRO had constitutional and political backing.” Ironically, legal experts say, the government filed a review petition in the NRO case even though it had admitted that it was “unconstitutional.”
Former Supreme Court judge Wajihuddin Ahmed maintains that during the NRO case hearing the Supreme Court did not insist on the implementation of its decision.
Lawyers agree that it was only after the dismissal of the review petition that the Supreme Court directed Gilani to implement the court order by writing to the Swiss authorities, but he defied the orders, which led to the contempt of court proceedings against him and his disqualification.
“The Supreme Court should be asked why it delayed doing this for so long,” says Ahmed. “The government filed a review petition in the NRO case, but it never asked for any stay, and if you don’t ask for a stay none is granted. Despite that, the judiciary showed utmost restraint, given the fact that in review petitions the success rate is usually less than one percent as the fundamentals of a case do not change.”
Experts say that even in the Lahore High Court verdict pertaining to Zardari’s holding of two offices of president and party chief, restraint has been demonstrated. The president has been given the option to choose either one of the two offices, and has been given time till September 5 to decide, which demonstrates that the judiciary does not want to undermine the democratic system and wants its continuity, they contend.
“But look at the government’s conduct on the other hand,” says Wajihuddin Ahmed. “After Gilani’s removal, they first tried to bring Makhdoom Shahabuddin in as premier – a man tainted by the ephedrine scandal along with Gilani’s son, Ali Musa Gilani. Once warrants were issued against him, they came up with Raja Pervaiz Ashraf, against whom there are also serious corruption allegations in the rental power case.”
PPP backers, unsurprisingly, insist that the allegations of corruption against their party members are fabricated. Taj Haider cites Zardari, who was imprisoned for 10 years, but not a single case was proven against him. “There is a clear bias towards the PPP and its leaders,” he says. “My question is, why it is only the PPP government which is being kept under the microscope? What about the performance of other institutions, including the judiciary, which failed to address the issue of hundreds and thousands of pending cases, to provide justice to the common man or even make appointments to vacant positions? “Therefore,” says Haider, “we propose to restructure the judicial system of the country and make four provincial Supreme Courts and a Federal Court in line with the charter of democracy, and ensure the accountability of judges as well”.
As the tussle between the two camps drags on, it is becoming ever more personalised, with a lot of mud-slinging from both sides. In an attempt to undermine the judiciary, the PPP and its allies point fingers toward Chief Justice Chaudhary Mohammed Iftikhar’s son, Arslan Iftikhar, who allegedly took bribes from real-estate tycoon Malik Riaz, promising to get him relief from his father’s court.
The chief justice’s supporters say that Arslan may have erred, but there is not a single case in which Malik Riaz’s Bahria Town has been provided relief by the court his father presides over.
Athar Minallah, a leading lawyer who was in the forefront in the pro-chief justice campaign during the days of former military ruler Pervez Musharraf, describes the situation as complex. “As an institution, the authority of the judiciary is at stake… some sections are trying to push the judiciary into the political arena. The question is, how can the judiciary step back on the NRO issue after Gilani’s disqualification?” The challenge is to ensure the sanctity and authority of the judiciary as well as to avoid the clash of institutions in which the ultimate loser will be Pakistan and its democratic system,” he says.
In this highly volatile and explosive situation, however, neither side appears to be backing down. In fact, each seems to be upping the ante rather than finding a workable middle ground.
“Politicians – be it in the government or the opposition – should have acted with more responsibility and maturity, rather than putting everything in front of the judiciary to decide,” Minallah says. “They should use parliament to decide contentious issues and seek political solutions in a rational manner. But, unfortunately, the country’s political forces have failed to do so.”
After Gilani’s dismissal, the judiciary indeed appears more confident and there are clear indications that the Supreme Court will further increase pressure on the beleaguered government, which seems to be fast running out of options as the opposition mounts the pressure for early elections.
One possible way out for the government is to call early elections, but this seems easier said than done. So far there has not even been an agreement between the government and the opposition on the composition of the interim set-up that could ensure free and fair polls. And even if they manage to cross this river, holding elections in this highly charged and polarised situation will be no mean challenge.
As political rivals and institutions lock horns, issues which are critical for the country are being placed on the back burner. The government has long abandoned the much-needed reforms vital for the battered economy, caught in a vortex of low growth and high inflation for the last four years. As feared by experts, the new budget 2012-13 (July-June) fails to address the structural flaws of the economy including expanding its narrow tax base, slashing the widening budget deficit which hovers at above 6.0 % in fiscal 2011-12, and reforming the energy sector and loss-making public sector enterprises which remain a huge drain on the economy.
In all the political turmoil and in the run-up to the elections, these urgent issues will have to wait to be addressed, which the country can ill afford. Simultaneously, the spectre of terrorism and extremism and the weakening writ of the state in different parts of the country pose a huge internal security challenge which is directly impacting Pakistan’s foreign relations and resulting in estranged ties not just with its neighbours, but also with the United States and other western powers. Given the government’s dismal performance on this front too, Pakistan’s future is becoming increasingly bleak. The government battles for the survival of its rule, but does so at the expense of the country.
Monthly Newsline
July 2012
The frail democratic system is indeed creaking under the weight of heightening government-judiciary tussle. There are genuine fears not just about its future, but also about the state’s viability and writ that has been shaken to the core due to the many years of misgovernance and misrule and the growing challenge of extremism and terrorism.
It is now a guessing game; how long can Raja Pervaiz Ashraf survive on the wicket as prime minister? If all goes well, though few are likely to bet on it, Ashraf will be in the prime minister’s house for not more than eight months before the hurly burly of elections starts and an interim set-up takes over. But if the judiciary strikes again, which remains the most likely scenario, his days are numbered. His exit could be in a couple of months at the most, or even in a few weeks.
The country’s executive and judiciary have already laid their cards on the table. The new prime minister has categorically announced that he, like his predecessor, will not write to the Swiss authorities regarding the opening of graft cases against President Asif Ali Zardari. Yousuf Raza Gilani chose to be disqualified rather than follow the Supreme Court verdict on the National Reconciliation Ordinance (NRO) case. The Supreme Court has now given the new prime minister the deadline of July 12 to formally indicate whether he will ask the Swiss authorities to reopen cases against President Zardari, who, the Pakistan Peoples Party’s constitutional and legal experts maintain, enjoys immunity from prosecution as head of state.
Between these two inflexible positions there appears to be no middle ground. It is either “my way or the highway.” The country is thus destined to remain in the throes of political uncertainty and strife for the foreseeable future, as two of the important state institutions remain openly at loggerheads. Although the other institutions, including the mighty military establishment, declare neutrality, they continue to operate from the shadows, as they have been doing since the return of democracy to the country – sometimes showing restraint and at other times working as a catalyst in determining the course of events.
The opposition – from the Pakistan Muslim League (N) to Imran Khan’s Tehreek-e-Insaf, and marginal players like the Jamaat-e-Islami – have their daggers drawn for an early ouster of the PPP-led government, even if it means cutting short its five-year term by only a few months. The opposition is the foremost cheerleader of the judiciary, along with the mainstream media which is serving as the main battle tank trying to clear and mould public opinion against the government.
The frail democratic system is indeed creaking under the weight of this heightening tussle. There are genuine fears not just about its future, but also about the state’s viability and writ that has been shaken to the core due to the many years of misgovernance and misrule and the growing challenge of extremism and terrorism.
No wonder Islamabad remains rife with rumours, with political pundits, experts and analysts drawing out different future scenarios for the country – from the ouster of this government through direct military intervention, to its removal through the judiciary and the induction of a set-up comprising technocrats and relatively clean politicians. The buzz around town is that some kind of Bangladesh model is being created. Critics meanwhile, contend that this is doomed to fail having already been tried, tested and found defective. The grinding of rumour mills aside, the underlining point is that most doubt the continuity of this democratic setup.
Zahid Hussain, senior analyst and author, says that the noose appears to be tightening around the PPP. “Zardari has saved the government from falling temporarily, and in doing so has increased the PPP’s reliance on its allies manifold, especially the PML-Q (Pakistan Muslim League Quaid-e-Azam group), but the crisis remains very much there.”
He continues, “Despite compromises, the question is, will this alliance survive in the mid to long run? Zardari accepted the verdict (of Gilani’s disqualification) because of the pressure of his coalition partners. These compromises will lead to other compromises…the situation is tenuous and this critical tight-roping cannot work for long.”
Government circles, however, remain hopeful that they will once again prove successful in defying prophecies of doom as they have managed to do in the past, complete their five-year term, hold elections and return to power. This view may appear almost unbelievably optimistic, but PPP stalwarts say that their support in the rural areas, which consistitutes the majority of the vote bank, remains intact due to this government’s pro-agriculturist and farmer policies and pro-poor programmes. In the urban areas, they maintain they still retain their support base, along with help from their allies.
Meanwhile, the routine conciliatory statements of top government officials towards the judiciary, replete with obsequious vows of respect for its authority, for the rule of law and the desire to avoid a clash of the institutions, appear deceptive as many of the government lawmakers, second-tier politicians and supporters aggressively accuse the superior courts of trying to stage a ‘judicial coup,’ of activism and of infringing on the grounds of the executive.
Perhaps in defence of the abysmal failure of governance witnessed in the past four years, the Pipliyas also keep highlighting the fact that the coalition government has been kept on the ropes since the start of its term, with the judiciary serving at the vanguard of the assault. From the National Reconciliation Ordinance (NRO)-related cases, that include the implementation of the courts judgment to that of Zardari concurrently holding the two positions of head of state and party co-chairman, the cases against Zardari are being cited by government loyalists as merely the tip of the iceberg that aims to sink the PPP-led coalition. Other roadblocks, which have made it difficult for the government to run even mundane day-to-day affairs, government officials contend, include the scrapping of the executive orders regarding appointments for senior positions, and efforts by the superior courts to micro-manage who should represent the government or investigate high-profile corruption cases against its senior members and their relatives. “The superior judiciary even tried to fix sugar prices rather than leaving it to market forces, and has kept the executive in the dock in regard to various high-profile cases, including that of missing persons, rental power and privatisation,” says one PPP official.
Senior PPP politician Taj Haider contends that Zardari is the actual target of all the attacks, but the PPP has so far managed to divert the frontal assault on him. “Gilani took the shot aimed at him, and we have shown that the PPP and its allies have no dearth of candidates for the slot of prime minister. We are all set to complete our term and Zardari will be president even after the elections. This scenario has made our opponents nervous. They are now getting desperate,” he says.
But the bravado and defiance of the PPP leaders and their allies have failed to impress detractors. They argue that the judiciary’s firm stance against the government’s open efforts to undermine the law, misuse its power and penchant for corruption and nepotism has proved, at least in part, a successful deterrent and prevented the government from going even further overboard in its wanton abuse of power.
As proof of this they cite the NRO case, in which the judgment to strike down the ordinance was announced unanimously by the Supreme Court judges in December 2009, and the government confessed in writing that the controversial ordinance was indefensible and unconstitutional.
“Despite having a two-third majority at that time, the government failed to have the NRO validated by parliament because it was discriminatory and unconstitutional,” says former law minister Iqbal Haider. “This shows that the Supreme Court judgment on the NRO had constitutional and political backing.” Ironically, legal experts say, the government filed a review petition in the NRO case even though it had admitted that it was “unconstitutional.”
Former Supreme Court judge Wajihuddin Ahmed maintains that during the NRO case hearing the Supreme Court did not insist on the implementation of its decision.
Lawyers agree that it was only after the dismissal of the review petition that the Supreme Court directed Gilani to implement the court order by writing to the Swiss authorities, but he defied the orders, which led to the contempt of court proceedings against him and his disqualification.
“The Supreme Court should be asked why it delayed doing this for so long,” says Ahmed. “The government filed a review petition in the NRO case, but it never asked for any stay, and if you don’t ask for a stay none is granted. Despite that, the judiciary showed utmost restraint, given the fact that in review petitions the success rate is usually less than one percent as the fundamentals of a case do not change.”
Experts say that even in the Lahore High Court verdict pertaining to Zardari’s holding of two offices of president and party chief, restraint has been demonstrated. The president has been given the option to choose either one of the two offices, and has been given time till September 5 to decide, which demonstrates that the judiciary does not want to undermine the democratic system and wants its continuity, they contend.
“But look at the government’s conduct on the other hand,” says Wajihuddin Ahmed. “After Gilani’s removal, they first tried to bring Makhdoom Shahabuddin in as premier – a man tainted by the ephedrine scandal along with Gilani’s son, Ali Musa Gilani. Once warrants were issued against him, they came up with Raja Pervaiz Ashraf, against whom there are also serious corruption allegations in the rental power case.”
PPP backers, unsurprisingly, insist that the allegations of corruption against their party members are fabricated. Taj Haider cites Zardari, who was imprisoned for 10 years, but not a single case was proven against him. “There is a clear bias towards the PPP and its leaders,” he says. “My question is, why it is only the PPP government which is being kept under the microscope? What about the performance of other institutions, including the judiciary, which failed to address the issue of hundreds and thousands of pending cases, to provide justice to the common man or even make appointments to vacant positions? “Therefore,” says Haider, “we propose to restructure the judicial system of the country and make four provincial Supreme Courts and a Federal Court in line with the charter of democracy, and ensure the accountability of judges as well”.
As the tussle between the two camps drags on, it is becoming ever more personalised, with a lot of mud-slinging from both sides. In an attempt to undermine the judiciary, the PPP and its allies point fingers toward Chief Justice Chaudhary Mohammed Iftikhar’s son, Arslan Iftikhar, who allegedly took bribes from real-estate tycoon Malik Riaz, promising to get him relief from his father’s court.
The chief justice’s supporters say that Arslan may have erred, but there is not a single case in which Malik Riaz’s Bahria Town has been provided relief by the court his father presides over.
Athar Minallah, a leading lawyer who was in the forefront in the pro-chief justice campaign during the days of former military ruler Pervez Musharraf, describes the situation as complex. “As an institution, the authority of the judiciary is at stake… some sections are trying to push the judiciary into the political arena. The question is, how can the judiciary step back on the NRO issue after Gilani’s disqualification?” The challenge is to ensure the sanctity and authority of the judiciary as well as to avoid the clash of institutions in which the ultimate loser will be Pakistan and its democratic system,” he says.
In this highly volatile and explosive situation, however, neither side appears to be backing down. In fact, each seems to be upping the ante rather than finding a workable middle ground.
“Politicians – be it in the government or the opposition – should have acted with more responsibility and maturity, rather than putting everything in front of the judiciary to decide,” Minallah says. “They should use parliament to decide contentious issues and seek political solutions in a rational manner. But, unfortunately, the country’s political forces have failed to do so.”
After Gilani’s dismissal, the judiciary indeed appears more confident and there are clear indications that the Supreme Court will further increase pressure on the beleaguered government, which seems to be fast running out of options as the opposition mounts the pressure for early elections.
One possible way out for the government is to call early elections, but this seems easier said than done. So far there has not even been an agreement between the government and the opposition on the composition of the interim set-up that could ensure free and fair polls. And even if they manage to cross this river, holding elections in this highly charged and polarised situation will be no mean challenge.
As political rivals and institutions lock horns, issues which are critical for the country are being placed on the back burner. The government has long abandoned the much-needed reforms vital for the battered economy, caught in a vortex of low growth and high inflation for the last four years. As feared by experts, the new budget 2012-13 (July-June) fails to address the structural flaws of the economy including expanding its narrow tax base, slashing the widening budget deficit which hovers at above 6.0 % in fiscal 2011-12, and reforming the energy sector and loss-making public sector enterprises which remain a huge drain on the economy.
In all the political turmoil and in the run-up to the elections, these urgent issues will have to wait to be addressed, which the country can ill afford. Simultaneously, the spectre of terrorism and extremism and the weakening writ of the state in different parts of the country pose a huge internal security challenge which is directly impacting Pakistan’s foreign relations and resulting in estranged ties not just with its neighbours, but also with the United States and other western powers. Given the government’s dismal performance on this front too, Pakistan’s future is becoming increasingly bleak. The government battles for the survival of its rule, but does so at the expense of the country.
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