The Supreme Court of Pakistan (SC) has directed Prime Minister Yousuf Raza Gilani to appear before it on Thursday to explain why contempt of court proceedings should not be initiated against him. The contempt charges emanate from Gilani not carrying out the court’s 2009 orders in the National Reconciliation Ordinance 2007 (NRO) case.
The NRO, 2007 had been signed and put into effect by the then military ruler of Pakistan, General Pervez Musharraf, and let over 8,000 people against whom a variety of cases—many concocted out of sheer political vengeance—were pending at various stages of the legal process off the hook. The most prominent beneficiaries of this reconciliation were late Prime Minister Benazir Bhutto and her spouse, the current President Asif Ali Zardari. Besides, thousands from the ethnic political party Muttahida Qaumi Movement were given reprieve under the NRO making the party the largest beneficiary of the law.
The NRO was negotiated between Musharraf and the current army Chief, Ashfaq Parvez Kayani, who headed the notorious Inter-Services Intelligence (ISI) and Bhutto. International players from the United Kingdom, the United States and perhaps the Gulf sheikhs are said to have guaranteed the deal, which paved the way for Bhutto’s return and indirectly of another former Primer Minister-in-exile Nawaz Sharif to Pakistan, and safe exit from the country, down the road, of Musharraf.
The restoration of the democratic dispensation that flowed from the much-maligned NRO also allowed Gilani, an elected Prime Minister, to first release the Judges of superior judiciary who were under house arrest and later restore them to their office. The restitution of these Judges, however, was not an easy task and ultimately required street protests by lawyers and opposition parties along with a facilitating nod/prod from General Kayani. This delay on part of the Pakistan Peoples Party (PPP), notably Zardari, to allow the country’s Chief Justice Iftikhar Muhammad Chaudhry to resume office was perceived as an affront by the latter.
Zardari, on his part, was apprehensive of the judiciary’s past attitude towards the PPP and himself. After all, the same Judges seeking his blessings for restoration stood by and did nothing for a good decade when he was put through the wringer of lawsuits (several if not all fabricated). He was denied justice for way too long to easily forget the role of the Judges in his ordeal.
Bad blood has existed between Pakistani politicians and the judiciary for the better part of the country’s existence. In tussles between various power centers like the military and the civil bureaucracy on one side versus democratic and even quasi-democratic forces on the other, the judiciary has invariably sided with the former two. The Pakistani superior judiciary has been, to its dubious credit, legitimising military takeovers and abrogation of the Constitution.
The SC has validated multiple martial laws and granted protection to military usurpers under the garb of what it called the ‘doctrine of necessity’—a perverted concept defined by the second Chief Justice of Pakistan, Muhammad Munir, as “that which is not otherwise lawful, necessity makes lawful”. Justice Munir had also inducted two other mutations to the legal corpus that “the safety of the people is the supreme law” and “the safety of the State is the supreme law” thereby providing a judicial cover to the national security state paradigm.
Under Article 6 of the Constitution, such actions of the judiciary effectively were treasonous as they actively aided and abetted those who had subverted the Constitution. Even worse is the fact that the superior judiciary’s hands are stained with the blood of the country’s first elected Prime Minister Zulfikar Ali Bhutto, whose judicial murder was the result of connivance between military dictator Zia-ul-Haq and Judges aimed at eliminating Bhutto. Therein, lies the single-most important reason for the mistrust between the PPP and the SC.
Historically, courts have been the venue for prosecuting numerous other activists and politicians on treason allegations. They have ranged from Faiz Ahmed Faiz and Comrade Sajjad Zahir (Rawalpindi Conspiracy Case), Sheikh Mujib-ur-Rehman (Agartala Conspiracy Case), Afrasiab Khattak and Pashtun progressives (Malakand Conspiracy case), Wali Khan and Baloch nationalist leaders (Hyderabad Conspiracy Case) to Makhdoom Javed Hashmi in the recent past. And all this was done in the name of national security and fundamental rights—specifically the Right to Liberty— were made subservient to the security of the state as has been done by the SC in its order in the so-called Memogate case.
It is in this backdrop that one must see the present three-pronged assault on the incumbent democratic dispensation in Pakistan, which came to power in 2008. The military establishment, certain right-wing politicians and the judiciary have made common cause to oust the PPP and its allies. Large sections of the Pakistani media have served as very effective cheerleaders in this endeavour.
The military, which was ruling directly through General Musharraf, found it increasingly difficult to continue doing so for multiple reasons and was forced to allow at least a civilian veneer while wanting to rule from behind the scenes. The junta reluctantly signed the NRO with the PPP but was unhappy to let the latter rule even in name. Many observers believe that the military’s mistrust of Benazir Bhutto’s understanding with the West, especially the US, her critical views of jihadism as a tool of foreign policy and favouring civilian supremacy over the military might have contributed to her elimination.
No sooner did the PPP assume power, efforts to elbow it out started in earnest. The military flexed its muscle first in 2008-2009 during the so-called Biden-Lugar Bill (later Kerry-Lugar Berman Act) row, where the US, directly and indirectly, wanted to make its military aid to Pakistan conditional to the army’s respect for civilian supremacy. A later attempt by the PPP to bring the ISI under the MoD was also thwarted by the army. The military establishment considered the former Pakistani Ambassador to the US, Husain Haqqani, its enemy number one. To them, Haqqani—an avowed proponent of civilian supremacy—had undone years of efforts by the junta to convince the US that they are the only show in town. Haqqani had to be cut to size, and soon. The quasi-sting operation a la Memogate afforded such opportunity to not just get Haqqani but also to net his boss, President Zardari. But as noted before here, the days of a textbook coup d’état are long gone. A physical takeover by the army would have led to international isolation and domestic turmoil.
This is where the courts became invaluable to the military brass again. The Opposition did not have the numbers in Parliament to impeach Zardari, or vote out the Prime Minister and mobilise the street had not worked so far. If an adverse verdict could be obtained against Haqqani and thus Zardari, it would be a slam-dunk. While some initial negotiations between the PPP and the junta were underway that could have brought closure to the Memogate, the army was actually looking for scalps. It double-crossed the PPP and just as Haqqani arrived in Islamabad, his passport was snatched and he was confined first to the presidency and then the PM House in a virtual house arrest.
Preparations had already been made through opposition politician Mian Nawaz to move the court in the Memogate matter and a plethora of petitions was filed with the SC in the name of public interest and national security. Nawaz Sharif, who had drifted away from the military establishment over the years, was induced to do their dirty work once again presumably via a threat of establishment putting its weight behind Imran Khan—the new kid on the political block, who has chipped away on Sharif’s power base in Punjab.
The classic military nutcracker manoeuvre was applied via the NRO judgment and Memogate to squeeze the PPP. Unfortunately, the SC, contrary to its recent claims to have buried its ignoble past, obliged to serve as the pincer trapping the PPP. In both, the NRO and Memogate verdicts, the court has resorted to a lethal cocktail of Islamism, jingoism and national security rhetoric with fanfare going so far as to declare Gilani a liar and a dishonest man not just in temporal but the divine sense of the words.
At the time of writing this piece, the SC had ordered PM to appear in person and explain why he should not be charged with contempt of court. As the disqualification clauses of the Constitution stand, he has not committed contempt of court by defaming or ridiculing the judiciary (Article 63-1G) and is not guilty of any moral turpitude (literally meaning a criminal offence) for which he could be sentenced to at least two years in prison (Article 63-1F). So the SC has a limited option to nail him down on vaguely applied standards of morality, or some presumed violation of the sovereignty or national security.
However, the SC—whose own past conduct has been highly contemptuous of the rule of law, upholding the Constitution and recognising civilian supremacy—may find it extremely difficult to hold an elected Prime Minister with a parliamentary majority backing him in contempt. The Supreme Court and especially Chief Justice Chaudhry must not forget that the only institution and its members who have a role dirtier than the military establishment in destabilising civilian governments is the superior judiciary of Pakistan. They can hardly be the ones fit to cast the first stone.
Mohammad Taqi is a columnist for ‘Daily Times’, Pakistan. He can be reached at
firstname.lastname@example.org or via @mazdaki