By Babar Sattar –
Picking apart the case and seeing what all the moving parts are
Let us recall how it all started. General Musharaf cut a deal with Benazir Bhutto that was brokered by the Americans. It would allow BB to return to Pakistan and provide democratic backing for Musharaf’s patronage of the US war on terror at a time when his control over state power was diminishing. Musharaf would, in turn, afford Benazir Bhutto and her spouse Asif Zardari a clean slate by disentangling them from their legal woes through a graft-amnesty scheme enumerated in the National Reconciliation Ordinance (NRO).
So loathsome was the idea of offering blanket immunity to public officials accused of corruption and abuse of authority during a certain time period – tailored to benefit the PPP leadership – that the civil society and saner elements across the country rose up in arms against this legislation back in 2007.
The NRO was seen as a devious plan to legitimize malfeasance and adulterate rule of law in return for petty political gains. The public outrage against it led to the refusal of key PPP-allies such as the MQM to support the NRO and eventually dissuaded the ruling regime from introducing this ordinance in parliament for its endorsement as a legislative act. Meanwhile, the NRO had been challenged before the Supreme Court for being ultra vires of the constitution and after comprehensive hearings – during which even the PPP-led government refused to defend the NRO – the apex court struck it down as unconstitutional and void ab initio (i.e., from the very beginning). The logical consequence of such finding was that all actions that had been taken under the authority derived from the NRO were illegal and had to be undone.
One such action was the letter written by Attorney General Malik Qayyum to Swiss authorities withdrawing Pakistan’s request for mutual legal assistance and status as civil party in money laundering proceedings pending before Swiss authorities that also implicated Asif Ali Zardari among others.
The Supreme Court had found during the NRO proceedings that Malik Qayyum had not even been duly authorized by the federal government to write the withdrawal letter. It consequently declared that such letter was not a valid exercise of authority and directed the federal government to (i) write to Swiss authorities informing them that the withdrawal letter that led to the closure of money laundering proceedings against Zardari & Co. was invalid, and (ii) secure Pakistan’s status as civil party in the money laundering proceedings and as beneficiary of the laundered proceeds of over $60 million that had previously been frozen by Swiss authorities.
So long as the NRO proceedings were seen as an academic debate about the constitutionality or lack-thereof of the NRO, the Zadari-led PPP did not care. But with the realization that a direct consequence of the NRO ruling could be reopening of money laundering proceedings in Switzerland against Asif Zardari and his minions emerged the ruling regime’s resolve to flout the part of the NRO ruling that could subject Asif Zardari to legal processes abroad. The first step in the direction was to file a review of the NRO ruling delivered by all 17 judges of the Supreme Court. During these review proceedings the federal government never raised the issue of constitutional immunity afforded to the president under Article 248 of the Constitution. But it employed all dirty procedural tricks to delay the conclusion of the review proceedings, including changing and even intimidating its own counsel.
While the review was still pending, the bench of the Supreme Court overseeing implementation of the NRO ruling was urged by the federal government not to insist on swift dispatch of the letter to Swiss authorities till the review of the NRO ruling had been disposed of. This bench took a lenient view and acceded to the request, and the issue of writing to the Swiss authorities lingered on. The NRO ruling attained finality after all 17-judges of the Supreme Court unanimously dismissed the NRO review petition, but the PPP-led regime was still unwilling to abide by such binding judicial verdict.
It was obvious that the ruling regime’s decision not to allow the letter to be written to Swiss authorities was not contingent on the legality of such position. And that manifestation by the prime minister and the federal government of unconditional loyalty to the person of Asif Zardari would take precedent over requirements of the law.
And so started the final chapter in the NRO saga with initiation of contempt proceedings against the prime minister for his failure and refusal to implement a binding verdict of the highest court of the land. The Zardari-Gilani duo devised a two-pronged politico-legal strategy to flout the NRO ruling. The political dimension has been to present the judiciary as a partisan political actor that (i) has historically sided with dictators while feigning allegiance to democracy and constitutionalism, (ii) has particularly been vicious toward the PPP in the past as evident from Zulfikar Ali Bhutto’s ‘judicial murder’, and (iii) is presently exercising judicial authority in a manner that on the one hand transgresses the bounds of judicial authority and amounts to meddling in the affairs of the executive, and on the other is motivated by the desire to instill regime change on behest of the ubiquitous ‘establishment’.
The legal dimension of the Zardari-Gilani strategy has been to employ technical arguments and procedural tactics to drag out judicial processes indefinitely in such manner that the public begins to lose patience with the court. And this devious strategy of the ruling regime seems to have worked. One, the restraint exhibited by the Supreme Court in not forcing the federal government’s hand in writing the letter to the Swiss till such time that the federal government had exhausted all judicial remedies against the NRO ruling bought the PPP-regime over two years and brought it close to the end of its 5-year term. With the general election less than a year away, the ruling regime has nothing to lose politically by playing the defiance game with the courts and much to gain if it can position itself within public imagination as an entity aggrieved by judicial highhandedness. Thus in the NRO implementation case, time is on the ruling regime’s side.
Two, in a socio-political environment where concepts such as rule of law and judicial independence are still not deeply entrenched and defiance of the law is not always adversely judged by the masses but instead seen as a manifestation of power to be revered, the prime minister, personally, has nothing to gain from abiding by the NRO ruling and much to lose if he doesn’t exhibit unconditional loyalty to President Zardari in his ‘hour of need’.
At the fag end of his tenure as prime minister, being convicted of contempt for unquestioningly standing behind his party head offers Yousaf Raza Gilani not only political dividends but also social mileage. The urban middle classes might fume over the audacity of the country’s prime minister to allow personal and political loyalty to trump demands of the law and the constitution, but within our prevalent cultural norms and rustic value-set that defines the mind set of PPP’s core constituency such loyalty is appreciated and not censured.
And three, when confronted by a perverse ruling regime willing to pay the immediate cost of defying judicial orders, a court of law armed essentially with moral authority and dependent largely on the executive for enforcement of its rulings is left with few options. The prime minister realizes that even if he is convicted, the appeal and review processes could drag on for months.
And everyone realizes that even if Prime Minister Gilani is disqualified as a member of the parliament upon conviction, the appointment of a new prime minister handpicked by Asif Zardari will not lead to implementation of the NRO ruling in letter and spirit. And should the court elect to initiate contempt proceedings against a new prime minister, it would only strengthen the PPP’s claim that under the garb of NRO implementation, the Supreme Court is essentially carrying our a witch-hunt against Asif Zardari.
At stake in the NRO implementation proceedings is not corruption or a fair trial, as the prime minister’s legal counsel would have us believe. Hanging in the balance is (i) our constitutional scheme of separation of powers that vests in the judicature the right and authority to interpret and enforce the Constitution, (ii) the finality that must attach to Supreme Court rulings and the deference they ought to be shown even if one disagrees with their wisdom, (iii) the sanctity of a lawful command and compliance with it without resort to coercive means, (iv) the need for rule of law to be seen and propagated as a defender of democracy and not a competing value, (v) the imperative for institutional norms to evolve in such fashion that they present the three pillar of the state as coordinate branches of government as opposed to fiefdoms of state authority at war with each other, and (vi) the foundational value underlying the notion of constitutionalism that all citizens are equal in the eyes of law and equally bound by it.
Back in 1908, Oliver Wendell Holmes had observed that, “great cases like hard cases make bad law. For great cases are called great not by reason of their importance… but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment.” Should the Supreme Court choose to accept the arguments advanced by the prime minister in his contempt case, Holmes will be proven right.
We cannot afford to give due process and fair trial such meaning that it ends up shielding delinquents. And we cannot have a prime minister deliberately and belligerently disregard clear directives of the Supreme Court, but expect the ordinary Joes to comply with court orders or other commands of the state.
The writer is a lawyer based in Islamabad