The Supreme Court has ousted the NRO and restored the criminal and corruption cases against 8041 accused of various crimes. The list includes a galaxy of the rich and notorious in Pakistan, including President Asif Zardari. The twists and turns in the drama are worth noting for an unprecedented mix of law and politics.
President Pervez Musharraf sacked Chief Justice Iftikhar Chaudhry in 2007 because he thought Mr Chaudhry would oust the NRO and stop him from re-election. But Mr Zardari restored Mr Chaudhry in 2009 despite the same sort of judicial conviction against him. Who was the bigger fool among the two Presidents only history will tell.
Forget the law. Mr Chaudhry’s political practice has been superior to that of his adversaries. He rallied the media and opposition and roped in the army to scale the SC again. Then he set about cleansing the stables by sacking all the pro-government judges and handpicking their replacements. Finally, he ordered parliament to enact the NRO in one month, or else. With the media and opposition baying for blood, the PPP backed off when the MQM left it in the lurch. Worse, Mr Zardari decided not to contest the NRO case in the misplaced hope that this might chasten the SC. If he had put up a stout defense, at the very least the government could have argued that by asking parliament to enact the NRO ordinance by a simple majority vote, the SC had implied that it wasn’t inherently unconstitutional. That would have entangled the various constitutional writ petitions before the court and enabled President Zaradri to evolve an exit strategy in the swamp of “past and closed transactions” during the 120 days validity of the NRO from October 5, 2007. In the event, however, the spirit of law was overtaken by the momentum of populism and a fatal blow was delivered to the cowering President and government.
The SC’s NRO judgment is a decisive measure of confrontation with the Zardari government. The judgment has ordered the government to prosecute Malik Qayyum, the former Attorney General, who got Mr Zardari off the hook in Switzerland. The SC argues that Mr Qayyum failed to produce a written order from any concerned authority authorizing him to do the deed. This is an unprecedented argument. If it were to be applied to the statements and actions of past Attorneys General in the law courts, none would stand up to the SC’s latest yardstick because all such positions and directions are invariably based on verbal discussions between government and state functionaries. No government has ever disowned any statement or position of its Attorney General in the past. So it is inconceivable that the Zardari government will respond with the seriousness of purpose demanded by the SC in this case. Similarly, the SC has directed the government to replace all the top dogs of NAB with independent and aggressive officials so that they can “sort out” the government and its luminaries, a contradiction in terms. Special “monitoring cells” in the top courts headed by senior judges are to be set up to ensure fast track proceedings against the 8041 accused. What will these do in the face of non-cooperation by the various provincial governments? The SC’s next step is therefore obvious: it will handpick and appoint public prosecutors everywhere, thus becoming prosecutor and judge at the same time.
And after that, the predictable will happen. The Supreme Court says the NRO is also unconstitutional because it violates Articles 62 and 63 of the Constitution which hold, among other things, that only those who are “sagacious, righteous and non-profligate and honest and ameen … and not of unsound mind” can be members of parliament (the President is part of parliament in the constitution’s scheme of things). Since it is up to a “competent court to determine this” as per the constitution, and there is no court more competent than the SC in these populist times, it is obvious which way the SC will bend when petitions are filed in a day or two challenging Mr Zardari’s presidency on this basis. Certainly, if the Swiss government reopens the money laundering case against Mr Zardari in which he was convicted, it would become easy to rely on Articles 62 and 63 to knock out Mr Zardari, notwithstanding the presidential immunity that he may enjoy under Article 248 of the Constitution.
The stage is therefore set for political instability, further erosion of the economy and diminishing focus on the war on terror. Without some quick “backroom deal” between with the Army and Judiciary that leaves him as a toothless President, Mr Zardari has as much hope of surviving as a snowball in hell. Therefore he can either throw in the towel (flee to Dubai or the US?) and let Prime Minister Yousaf Raza Gilani run the government as a stooge of the Army and Judiciary; or he can join hands with Mr Nawaz Sharif, implement the Charter Of Democracy, call fresh elections, set up an interim caretaker government, and play the Sindh card to maximum effect. Should the Army and Judiciary have “other ideas”, Mr Zardari and Mr Sharif can jointly thwart any such anti-politician conspiracies. With the corps commanders having met, we should soon know which way the wind is blowing.