Activism, restraint and justice

Ameer Bhutto
Wednesday, January 18, 2012

Despite accusations of judicial activism, the Supreme Court has in fact demonstrated far more restraint than was warranted. Firstly, the five-member bench hearing the NRO implementation case was fully competent to issue a verdict in the matter, but instead their lordships requested the chief justice to form a larger bench, thereby giving the government yet another opportunity, undeserved, to show compliance with the court ruling. Predictably, this opportunity was not availed.

Secondly, in the light of the Jan 10 order of the five-member bench which held the prime minister to be in dereliction of duty as well as violation of his oath and the Constitution and liable to not only answer charges of contempt of court, but also possibly face disqualification from membership of parliament, the seven-member bench could have justifiably ruled on Monday that the prime minister stood disqualified. In fact, after finding that the prime minister had demonstrated greater loyalty to his party than to the law and the Constitution, it is hard to understand how the court could let him off the hook on that count by not exercising the disqualification option. Justice and due process of law should have been allowed to take their course. But instead, though it defies the senses as to what can be achieved by repeatedly giving chances to those who have made no secret of their intentions, their lordships have chosen to give him yet another chance in the upcoming contempt proceedings to make amends, offer an apology to the court and implement its orders in toto.

Thirdly, the Jan 10 ruling also noted the option of taking similar action against the President. But the Jan 16 ruling spared the president entirely. If anything, he appears to be more responsible than the prime minister for lack of implementation of the NRO verdict. He is the co-chairman of the ruling party and is clearly running the show from the Presidency, in violation of the Lahore High Court ruling that, being head of state, he must curtail his political activities. He has gone even further than the prime minister and unambiguously announced to the world on television that while he is president, his administration will not write the letter to the Swiss authorities. Yet the court has chosen to refrain from taking action against him. This is not activism. This is more restraint than could reasonably have been expected.

The Supreme Court, in its verdict rejecting the NRO verdict review petition, stated that if anyone wishes to claim immunity under Article 248 of the Constitution, he may claim it in court. Immunity does not automatically apply unless claimed in court, and then the court decides whether it applies in the case in question. The scope of Article 248 is vague and requires judicial interpretation. But if Zardari applies for immunity in court, he risks having his hollow bluff exposed. In his heart of hearts even he must know that Article 248 does not cover him in this instance. He will, therefore, cling on to the mirage of immunity for as long as the court continues to exercise restraint.

The pivotal question that arises is, will the action taken by the Supreme Court against the prime minister be enough? There is no reason to doubt this government’s resolve not to write the required letter to the Swiss authorities, not because it would amount to putting Benazir Bhutto’s grave on trial, as they claim, but because they do not wish to put their party’s present co-chairman’s neck on the chopping block. He is the goose that lays the golden eggs for his sycophants. If he goes, they all go.

It remains to be seen what can be achieved from the contempt notice and proceedings. What line of defence will the prime minister adopt before the Supreme Court tomorrow? Resignation will not save him because the notice for contempt is for offences already committed by him for which he must be answerable. Nor is it likely that the he will now change his tune and write the letter to put his president on trial for corruption in a foreign country. As such, the court will have no alternative but to convict him of contempt. Then what?

Even if the court locks up Gilani in prison, the issue of implementing the NRO verdict will remain unresolved. It is futile to imagine, with Zardari holding the reins of the ruling party and fully in control of the administration, that the new prime minister will follow court orders in this matter.

It is not just Gilani who is the impediment in the implementation of the NRO verdict. How many more prime ministers will have to be sent to prison on charges of contempt of court before it is realised that the larger issue that needs to be addressed is that of freeing the country from the clutches of a rogue government that is hell bent on clinging on to power, come hell or high water?

Every day they linger on in power is to the detriment of Pakistan. For two years this government has dragged its feet in implementing the NRO verdict, though the NRO was so politically and ethically repugnant that even this lot could not justify defending it in court or parliament. The future of democracy is being put in jeopardy to save one tainted man from the consequences of his corrupt and criminal past. Who benefited more than Zardari from the NRO? From languishing in prison and living in exile, on account of over a dozen corruption cases and four murder cases, he went straight to the Presidency. Is it any wonder that he is perceived to be the poster-boy of NRO beneficiaries?

This government seems to have evolved suicidal tendencies of late. Its kamikaze putsch against the Constitution, the legal system and vital pillars of state can not be allowed to sink the whole country with it. If they are not mocking and ridiculing the judiciary and refusing to implement its orders, they are invariably attacking the armed forces and intelligence agencies, hallucinations of whose intrusion into the political arena send them scampering frantically to their foreign overlords for protection. Many have drawn the conclusion from their schizophrenic, self-destructive behaviour that they are deliberately trying to become political martyrs so that they can once again go to the public as victims and appeal to their sympathy.

The People’s Party has, in recent decades, made a pretty good living off people’s sympathy, which they use like an ATM card to extract political advantages. They played on people’s emotions over the hanging of Zulfikar Ali Bhutto to get into power in 1988, but then handed out medals to those who hanged him. They went to the people as political martyrs after their governments were dismissed in 1990 and 1996 on charges of corruption, but failed to learn their lesson, and nothing changed. They once again appealed to people’s emotions in 2008 over the murder of Benazir Bhutto and managed to wiggle into power, but have yet to punish her killers.

Genuine public sympathy and affinity is a prerequisite for the people to accept claims of political martyrdom. People sympathised with Benazir Bhutto because she was the daughter of Zulfikar Ali Bhutto and was very popular in her own right. As such, they flocked to her when they felt she was suffering or may have been treated unfairly. Zardari does not enjoy anywhere near the same level of sympathy or loyalty among the masses. He has done nothing to endear himself to them. As such, why should they care, or consider him and his party to be political martyrs, if they are removed from office? The balance of this particular sympathy ATM card ran out a long time ago.