The NAB Chairman, Naved Ahsan, has resigned. He was caught in the crossfire between the Supreme Court (SC) and the Government of Pakistan (GoP). The SC wanted the NAB Chairman, Prosecutor General and Deputy Prosecutor General sacked for not implementing its orders to reopen corruption cases against President Asif Zardari, in particular a money laundering case before a magistrate in Switzerland, after the ouster of the NRO by the court some months ago. After some foot dragging, Mr Ahsan duly sacked his subordinates as allowed by the rules. But he held on personally because the process for the Chairman’s ouster is cumbersome, controversial and difficult, like that of a senior judge or the chief election commissioner whose terms are fixed by law. But he threw in the towel after the Chief Justice of Pakistan (CJP), Iftikhar Mohammad Chaudhry, threatened “coercive” measures, including a freeze on his salary, if he didn’t comply with the SC’s orders. Does this mean that the path has been cleared of all obstacles to proceed against President Zardari?
No. Mr Ahsan will remain in charge of NAB, as per the SC’s initial “suggestion”, until the government appoints a new Chairman. But that is easier said than done. Under the law, the NAB chairman is to be appointed by the PM with the approval of the CJP and the Leader of the Opposition in the National Assembly. But such a unanimous choice is not likely to be forthcoming quickly, with each player using his veto power self-interestedly. At any rate, in view of the serious intended and unintended consequences that can prove injurious to the proposed new Chairman’s health, as evidenced by the discomfort of Mr Ahsan in the last three months, there are not likely to be too many candidates tripping over themselves for the job. So we may expect the stand-off between the SC and the GoP to get arbitrary and nasty.
In fact, there is a new twist in the drama. Mr Ahsan has submitted before the SC a file of correspondence between NAB and the federal law ministry regarding the legal position and standing of NAB in the matter of the Swiss case against President Zardari. This case was closed (on the basis of the NRO) on the orders of the Zardari GoP via the office of the then Attorney General of Pakistan in early 2008. The law ministry claims Presidential immunity from any criminal proceedings as clearly enunciated under article 248 of the constitution. Mr Ahsan’s plea is that he cannot directly write to the Swiss government or courts to reopen the case for two reasons: the President’s immunity; and the rules of business between states which preclude any actionable correspondence between any organs of two states without the explicit approval and cover of the governments of the two states. In other words, he wants the SC to first adjudge on the matter of the President’s immunity; and then, in the event of finding the President not immune from prosecution, order the GoP to take action against its own President.
This is a tall order. The SC will have to make some incredible legal somersaults in order to strike down the President’s immunity. Indeed, given its eroding credibility because of its perceived targeting of the government and kid-glove handling of the opposition, the SC could split on this issue. But even if it defied the logic of events and public perceptions, there is no way the SC can get its decision implemented effectively by the current GoP. Hundreds of delaying and obfuscating tactics can be employed by the GoP on the basis of national and international rules and norms to thwart the court’s bid to knock out Mr Zardari. Certainly, NAB’s attempt to revive corruption cases against the leaders of the opposition – in particular the Sharif brothers from Punjab – are being stonewalled by the courts in Punjab province on one pretext or another following the wholesale appointments of judges in the Lahore High Court with the approval of the Chief Minister (CM) of Punjab, Mr Shahbaz Sharif.
This is unprecedented, even unconstitutional. The constitution says provincial high court judges shall be appointed after due “consultation” between the Chief Justice, Governor (appointed by the President), CJP and PM. As in India, the CM was denied this role by the constitution in order to avoid any resultant pressure of political “jobbery” which would erode the independence of the judiciary. But the SC allowed the CM – via the penultimate para in the NRO judgment – to intervene decisively, a clear case of “Per Incuriam”, meaning “lack of care”, because the issue was not petitioned or discussed in the NRO case.
The skirmishes between the SC and the GoP have thus far been won by the SC. But the war is far from being lost by the GoP. That will only happen if and when the SC is able to drag the powerful Pakistan Army into the fray and order it to complete the court’s mission at the expense of the GoP. The problem with that scenario is that the opposition led by Nawaz Sharif might oppose the move because it could also sound its own political death knell.