In clash of institutions, Pakistan's Supreme Court sets the pace

February 04, 2012 01:25 am | Updated December 04, 2021 11:09 pm IST

PERMANENCE OF CRISIS: The constant war among the Pakistan Army, government and the Supreme Court has paralysed governance and left the country weary.

PERMANENCE OF CRISIS: The constant war among the Pakistan Army, government and the Supreme Court has paralysed governance and left the country weary.

In the last few weeks, the Supreme Court of Pakistan has taken up three important matters. The first was to do with the infamous memo that a Pakistani-American businessman claimed to have carried to a United States military official on behalf of the Pakistan government, asking for assistance to prevent a military coup in the wake of the Osama bin Laden raid in Abbottabad.

The second relates to a contempt case that the Supreme Court has slapped on Prime Minister Yusuf Raza Gilani for ignoring its order asking the government to write to the Swiss authorities to reopen money laundering cases against President Asif Ali Zardari.

The third, and the one that has received the least publicity, was the summons by the court to the heads of Pakistan's Military Intelligence and Inter-Services Intelligence (ISI), on a case relating to a group of missing persons — all terror suspects said to be in the custody of the intelligence agencies — of which four have been found dead.

The first, known as “memogate,” kept Pakistan on edge for nearly four months, as the civilian government battled charges of “treason” against the Pakistan Army. The Pakistan Army chief and the ISI head did not hide their desire to see heads in the government roll. They were gunning for President Zardari; they got the Ambassador to the U.S., Hussain Haqqani, who was sacked for a yet unclear offence. With aggressive brinkmanship, they even adopted the judicial route to take the matter to its “logical conclusion.”

Charges on February 13

It is now evident that the “memo” issue has lost much of its traction after the main protagonist, the businessman, failed to respond to court summons last month. The court, which had earlier barred Mr. Haqqani from leaving the country, ordered him off the “exit control list,” and he has left the country. It has given itself two more months to investigate the matter. The Army, after upping the ante, is in retreat on the issue; and finally, the government got a breather that was short-lived. The Supreme Court is set to frame contempt charges against Prime Minister Gilani on February 13. Going by the proceedings, the court is furious that the government chose to ignore a directive that it gave back in December 2009.

It scathingly dismissed defence arguments that the Prime Minister sincerely believed that as President, Mr. Zardari had immunity from prosecution. If convicted, he stands disqualified from Parliament and must step down from office. As the Constitution says nothing about the time frame for disqualification, he runs the risk of not being able to contest an election ever again.

The matter would not end with Mr. Gilani's possible departure. The court would certainly hold a new Prime Minister equally obliged to carry out its order.

Separately, the court has taken a serious view of the involvement of the intelligence agencies in the missing persons' case. The petitioner in this case is the mother of four of 11 missing men who were held as suspects in various terror cases, including the 2009 attack on the GHQ in Rawalpindi. Last month, she received a mysterious phone call asking her to collect her son from the Lady Reading Hospital in Peshawar, and eventually found his body on the Grand Trunk Road outside the city. The bodies of three others in the group had turned up earlier outside the hospital. With stern observations on the conduct of the intelligence agencies, the court has ordered that the remaining seven be produced on February 9.

Each of these cases, unrelated at one level, are part of an extraordinary spectacle unfolding in Pakistan, unlike at any other time in its history, in which the main institutions are engaged in a mother of all clashes, each pulling in different directions as they attempt to redefine or reclaim their turf.

A meeting of minds between any of two of the three institutions might have ended the confrontation by now. Instead, what there is today — and has been for the last many months — is a continuous attempt by each to wear down the other two through constant attrition. Predictably, it is the Supreme Court that has emerged the most confident in this war of nerves.

Mainly, this has to do with Chief Justice Iftikhar Chaudhary, who has been on a mission to restore lost glory to the Pakistani judiciary ever since he won the battle against his attempted removal by the then President and Army chief, Pervez Musharraf, in 2007.

If the court's ongoing clash with the executive has led to the suspicion that the judiciary is once again acting as a handmaiden of the military, Mr. Chaudhary does not seem concerned.

Indeed, after it took up the “memo” case, the court has been accused of playing the military's game against the civilian government. But the fact that even the military is unsure of Mr. Chaudhary's intentions (for instance, in the missing persons' case) is an indication that the judiciary is not held to be as predictable as it was even a decade ago. At the moment, the Chief Justice, whose historic term ends in 2013, seems to be driven by the need to leave behind a legacy of trying to restore the “rule of law” in Pakistan, irrespective of where that leads.

The judiciary's confidence is in contrast to the uncertainty of the others. Elections have to be held anytime before May 2013. The political scene presents a jumbled picture. The increasing conservatism of middle Pakistan, the shrinking of moderate space, and the entry of Imran Khan and his Pakistan Tehreek-e-Insaf have rudely shaken up the chessboard at which the Pakistan Peoples Party (PPP) and Nawaz Sharif's Pakistan Muslim League (N) were making smug calculations, even though there is still no certainty about the former cricket star's electoral pull.

Army's position

The Army seems on even shakier ground. It has been on the defensive ever since the U.S military raid in Abbottabad that took out Osama bin Laden. General Ashfaq Parvez Kayani is on a three-year extension as Army chief. With the institutional memory of General Musharraf holding up promotions for nearly a decade still fresh, his moves are being watched by the top generals immediately in the line of succession.

The term of the ISI chief, Lt. General Shuja Pasha, ends in March, and it seems unlikely after the “memogate” fiasco that he will get an extension, unless he does a deal with the government. The Army is being asked why the government should be held responsible for a memo of dubious origins, while the military has refused to be held accountable for Abbottabad, or for any of its other failures, before or after. Most importantly, the intense anti-Americanism the military fanned as it tried to deflect blame from itself has ricocheted: the rupture in relations with the U.S, particularly the Pentagon, its traditional patron, means no America to its rescue.

Not surprisingly, the ongoing tug of war in Pakistan has brought governance to a near standstill, sent the economy down the tube and left people weary of and depressed with the permanent crisis. Given all this, it is remarkable that any movement was made at all in India-Pakistan relations, particularly on the trade front. But even on that, the opposition by Islamist groups banded together as the Difa-e-Pakistan (Defence of Pakistan), under the leadership of Hafiz Saeed, hardly augurs well. The outcomes of the scheduled meeting between the two Commerce Ministers later this month are still uncertain, and might turn out to be minimal.

But in a counter-intuitive kind of way, the big picture is not entirely negative: an elected government is close to finishing its five-year term for only the second time in Pakistan's history; it will also be the first time that the transition from one government to the next will likely be effected in a democratic way — the Pakistan Army may only be a hair's breadth from a coup, but has refrained for both institutional and political reasons. It is this that gives Pakistanis some hope that something positive might yet result from all the churn.

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