Come autumn by Najam Sethi

[Call for Change]

Come autumn by Najam Sethi

A five-member bench of the Supreme Court has ordered the prime minister, Raja Pervez Ashraf, to appear in court on August 27 and face the music. He has been ordered to confirm that he shall write a letter to the Swiss authorities as required by the court or be disqualified from remaining a member of parliament like his predecessor.

Most constitutional and legal experts say the dye is cast: the PPP is refusing to write the damned letter, the court is not ready to budge, so a second prime minister will be sent packing sooner than later. Political pundits say that this could be the "beginning of the end" because a discredited political system in gridlock between the judiciary and executive is likely to pave the way for a military intervention that would grievously damage "democracy".

We beg to differ. This is not a constitutional or legal crisis. It is a political tug of war for turf between two organs of the state, the executive and judiciary, led by two powerful and ambitious personalities, in which the law and constitution are being manipulated and even distorted for mundane reasons.

The driving force at one end is the person of Mr Iftikhar Mohammad Chaudhry, the Chief Justice of Pakistan, and at the other is the person of Mr Asif Zardari, the President of Pakistan. The first derives his power not from the institution of the SC but from the rebellious history of the successful lawyers' movement against a dictator; the second derives his strength not from the institution of the Presidency but from the martyrs' history of the PPP against two dictators. The first is trying to enlarge the scope of his constituency and power by means of extraordinary "judicial activism" which is actually undisguised "political populism"; the second is trying to retain the political space of a national party that is besieged not just by traditional foes like the military and Muslim-League opposition but also by aggressive new players like the media and judiciary as well as the rising third force of Imran Khan.

Both antagonists realize that any miscalculation of the other's intent could hurt them equally because each is personally vulnerable in some way or the other: the public increasingly perceives one to be tainted by the errant ways of his son and is persuaded that his judgments are becoming one-sided; the other is personally held responsible for the cronyism and corruption that have laid peoples' live unbearably low.

The logic of the situation cannot be ignored. Sending a second prime minister home will simply denigrate their mutual standings in the mind of the public: a matter of institutional "principle" will degenerate into simple bloody-mindedness of a highly personal nature. The nomination of a third prime minister for the slaughter is bound to mock the public's patience and put the system and both of them in the dock. Neither can afford to let the matter slide to such a denouement that creates division within their ranks and weakens them.

The answer does not lie in an immediate resort to the will of the people via general elections. That would be an unmitigated political disaster for Mr Zardari. He would completely lose control of the situation to an interim government answerable to an independent Chief Election Commissioner and a rampant court lording over the Election Commission. The damned letter would not just be written by the interim government but would be literally dictated by the court to it. Much better to resolve the issue before such an interim arrangement becomes unavoidable in a few months.

The court insists it will not budge on its "principles" that a letter has to be written. But it has admitted in so many words that the office of the president has immunity from prosecution and that some "middle" way should be found, suggesting some leverage in the wording of the letter to satisfy one side's principles and protect the other's interests. The Attorney General has promised to explore how this can be done. Meanwhile, neither side is willing to display any weakness that can be unduly exploited by the other. So it is "talk talk, fight fight" all the way to conflict-resolution.

The government is trying to drag the talk by filing a review petition of the court's judgment. It could even pass a presidential ordinance to block the court's way. It is fighting back too by unleashing party loyalists against the judges and their judgments. But the court will fight back by slapping contempt on its detractors and rubbishing the petition and ordinance. August 27 is not cast in stone. But come autumn, the contours of the compromise should become clear. Both sides should be able to simultaneously claim victory, one for getting the letter written after all and upholding the "supreme writ" of the supreme court and the other for not enabling it to dig up the grave of its martyred leaders and derailing "parliamentary democracy".

http://www.thefridaytimes.com/beta3/...0120810&page=1