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The big fight

By Imtiaz Gul

Hindustan Times, Jan 24,2012

Political crises are hardly new to Pakistan, but the one playing out now is unprecedented: the government is under threat primarily from the judiciary, not the army, which has intermittently seized the reins of power. At the heart of the crisis is a battle between the camp of President Asif Ali Zardari, of the Pakistan People’s Party, and its adversaries – an assertive judiciary backed by the military establishment and the opposition, led by Nawaz Sharif, a former prime minister, and Imran Khan, the rising star of Pakistani politics.

The battle revolves around two issues: cases of corruption in which Zardari was allegedly involved in the 1990s and a mysterious memo allegedly drafted by Ijaz Mansoor, a Pakistani-American, and Husain Haqqani, a former ambassador to Washington and sent to Admiral Mike Mullen, a former US army chief. Mansoor claims that in the memo, the government sought the US’s help it prevent an army coup in May, after American forces killed Osama bin Laden in Abbottabad.

In the corruption cases, both Zardari and his late wife Benazir Bhutto are accused of laundering millions of dollars in kickbacks through Swiss banks. But in October 2007, in order to facilitate Bhutto’s return from exile, General Pervez Musharraf crafted a controversial amnesty regulation called the National Reconciliation Ordinance (NRO), which effectively buried those cases as well as another 8,000 or so against other politicians. The NRO eventually cleared the way for Zardari to come to power after Bhutto’s assassination in December 2007.

But in November 2009, the Supreme Court struck the ordinance down, declaring that it had violated the constitution. The Supreme Court, who some believe is biased against Zardari’s party, then also began urging the government to write to Swiss courts to reopen the cases. Until recently, however, the government has dithered, taking cover from Article 248 of the Constitution, which grants the president immunity from criminal proceedings. As recently as last Monday, during a rare appearance before the apex court Prime Minister Yusuf Raza Gilani told judges that he could not comply with its orders for this reason.  

“In the constitution, there is complete immunity for the president. There is no doubt about that,” Gilani, flanked by cabinet members and coalition partners, told the court, which had summoned him to explain why contempt of court proceedings should not be initiated against him for refusing to obey a two-year-old order to write to Swiss authorities to ask them to reopen a graft case brought against Zardari in the 1990s.

Man in the middle
Aitzaz Ahsan, a lawyer defending Gilani in the contempt case, was Benazir Bhutto’s long-time associate but had fallen out with Zardari after the president refused to restore senior judges dismissed by Musharraf in March 2007 to their posts.

Ahsan is in a difficult situation: He was at the forefront of the lawyers’ movement for restoration of the higher judiciary dismissed and detained by Gen. Pervez Musharraf, which not only led to the undoing of Musharraf in August 2008 but also culminated in the rehabilitation of more than five dozen judges in March 2009 to their posts, a historic move made possible also by Nawaz Sharif’s insistence and the military’s pressure.

Ahsan’s decision to defend Gilani has not gone down well with many lawyers who had stood by him during his leadership of the movement. At the hearing on Monday, they shouted slogans such as “a friend of Zardari is a traitor.” Ahsan’s colleagues had to whisk him away from the cameras as the hostile sloganeering grew louder.

In order to defend Gilani when the court resumes hearing the case on February 1, Ahsan will be in the awkward position of also having to argue, by default, that the president enjoys immunity against prosecution. Indeed, the court has pointedly asked Ahsan to argue whether or not constitutional immunity covered criminal cases constituted against Zardari before he took office.

“Inshaallah, I’ll satisfy the court on the immunity issue,” a subdued but visibly perturbed Ahsan told reporters after the hearing last week.

The fate of both Gilani and Zardari now seem to have been linked because if the court rules that Zardari does not enjoy immunity, then the government will have to reopen the cases against him. By insisting that Zardari enjoys immunity, the government has inadvertently walked into a trap because it will be forced to also discuss the constitutional issue of presidential immunity in the court, which it has been avoiding so far.

If found guilty, Gilani will cease to be a member of parliament, thereby lose the prime ministership and be barred from holding public office for five years.

The two-week break in the hearing may have given the beleaguered government some breathing space on the ordinance issue, but it is also battling the powerful military over the memo, a tussle that has come to be called “memogate.”

Early election
Combined pressure from judges, generals and opposition politicians could lead to an early general election, due only next year. The government wants to delay it beyond March because Zardari’s party hopes to get a majority in the senate election due then, before possibly being forced out. But opposition leaders Sharif, Imran Khan and Maulana Fazlur Rehman are demanding that the government step down at once.

On Tuesday, US-based Mansoor is expected to appear before a commission investigating the memo, for which he has already secured a visa for Pakistan. He is threatening to divulge “shattering secrets” during his deposition, which detractors say will spell even more trouble for the president.

But the army is highly unlikely to intervene directly because it is already stretched fighting entrenched Islamist militancy in the northwest and its popularity among the people is at an all-time low after the US’s killing of Osama bin Laden.“No one, whether the judiciary, the military or the opposition, wants to take responsibility for demolishing the existing democratic structure,” said Talat Masood, a retired general- turned-political analyst. “What all of them want is an early election. There is tension between the government and the judiciary and the army, but no collision — so far.”

With the government fighting for survival, the country reels under prolonged power and gas outages, crushing inflation and a deteriorating law and order situation. Businessmen in big cities such as Rawalpindi, Lahore and Faisalabad are struggling because of power and gas shortages.

“Nobody seems interested in providing us relief from the painful economic problems that we face,” said Nadeem Abassi, a shopkeeper in Islamabad, the capital.

The crisis does, however, have a silver lining: In post-2007 Pakistan, after Chief Justice Iftikhar Chaudhry declined to support General Musharraf for a second presidential term, Pakistan seems to be painfully but surely moving towards constitutional rule, said Salman Akram Raja, a prominent Supreme Court lawyer, during a television debate on Thursday. After all, the current government might fall but the rule of law, as interpreted by the court, and not the army, will prevail.


Imtiaz Gul is the Executive Director of the independent Centre for Research and Security Studies, and is currently a Fellow of International House of Japan/Japan Foundation, Tokyo

Email: imtiaz@crss.pk