Some hacks had predicted a “thrilling” clash between the Supreme Court and the Zardari government on Monday, September 27, that was supposed to result in the ouster of the government of Prime Minister Yousaf Raza Gillani soon thereafter. This was based on Mr Gillani’s repeated avowal in and out of parliament that he would not write to the Swiss government, as demanded by the SC, to reopen the money laundering case against President Asif Zardari on the grounds that he enjoyed presidential immunity while in office. The PM had buttressed his arguments by asking how the president, who is the head of state, supreme commander of the armed forces and an integral part of parliament, could be proceeded against in a foreign country without surrendering the “sovereignty” of Pakistan which is parliament’s foremost duty to protect and defend as laid out in the constitution.
In the event, however, Mr Gilani’s law secretary did not appear in the SC on Monday to present the PM’s aggressive point of view. Instead, the Attorney General politely requested the SC to postpone the matter until the fate of the government’s NRO review petition is settled. Significantly, the SC accepted the AG’s argument, thereby reprieving the PM until the next date of hearing, 13th October, while simultaneously ordering the NAB to investigate and present details of all pending cases relating to Mr Zardari and other PPP stalwarts in other countries like the UK and Spain etc, thereby stressing its determination to unearth and recover all illegal funds stashed away abroad. On the other side, the PM has lamely gone silent on his “Presidential Immunity” viewpoint in order not to provoke the SC but he has also reneged from a commitment to compel all NRO-beneficiaries to resign from their posts in government, in order to close party ranks and protect the pillars of the regime.
Clearly, then, we have some breathing space but no solution to the crisis. Each side seems bent on defending and enlarging its position. Equally clearly, the space for a cool rethink by both sides seems to been have brought about through the courtesy of the army chief, General Ashfaq Kayani, whose discreet council was broadcast on Monday via a picture of him sitting at ease in the presidency with the President and Prime Minister. Conventional wisdom says that the army wants a much better performance from the sitting government rather than any regime change that brings in old and equally discredited faces and makes matters worse.
The government is using guerilla tactics to delay decisions on hurtful matters. So it is blowing hot and cold. It accuses the establishment of witch-hunting the PPP government and making it impotent – the army has already claimed control over foreign policy and wants to dictate economic policy, including defense budgets. And it accuses the judiciary of encroaching on space reserved for the executive and parliament. At the same time, however, the government has placated General Kayani by giving him an unprecedented three year extension as army chief and sanctioned an immediate 25% increase in a supplementary defense allocation for 2010-11 to fight the war on terror. It has also backed down and refrained from resisting several of the SC’s controversial judgments and orders that affect it adversely.
Therefore we may expect the government to try and fortify itself in the run-up to the next D-Day, October 13th, with better legal advice and some deft moves to thwart the SC. It may either appoint a new NAB chairman who is favourably disposed towards it or delay the appointment by putting the burden on the opposition with which consultation is mandatory. The government may also request the SC to defer the matter of the NRO to parliament for review and obtain a majority resolution in its favour, a course of action that would make its current NRO review appeal that much stronger and delay matters further. If and when this fails, the government could plead Presidential Immunity and Presidential Sovereignty, additional delaying tactics. In the final analysis, it might even agree to write a letter to the Swiss authorities that is worded in such a way as to avoid any bartering of parliamentary or presidential sovereignty and immunity and without enabling any quick reopening of the case in Geneva. We know that the Swiss judge who investigated the money laundering case from 2003-2006 and the Swiss Attorney General who closed the file in 2008 are not on the same page regarding Mr Zardari’s culpability and the constitutionality of closing the file.
Therefore the game for the PPP regime is far from over. At the heart of the matter are the core contradictions among the key players: the army doesn’t want the PPP regime to be replaced by a PMLN regime headed by Nawaz Sharif; the SC doesn’t want any elected regime to lord over it while it is making a revolutionary quest for popular legitimacy beyond the scope defined by the constitution and parliament; and the army is shy of a direct intervention in which the mainstream parties and the popular SC are arrayed against it. This dynamic complexity is creating space for the PPP’s slippery maneuverings on the brink of the cliff.