Clash Between SC and Government (Business Recorder April 10, 2010)

Rover’s diary

By Babar Ayaz

Fade the lights on the president and move the spotlight on the prime minister, this is how a director of a Pakistan political show would shout in his mike. Not only has the Constitution (Eighteenth Amendment) Act 2010 transferred those powers to Prime Minister Yousuf Raza Gilani, which was enjoyed by the PPP founding leader Mr. Bhutto, the on-going pressure of the Supreme Court has been also moved on him.

The law ministry says that writing to the Swiss Court for the opening of the money laundering case would now have to be approved by the prime minister. Now this is putting him in a tight spot. What is Prime Minister Gilani’s predicament: if he allows writing to the Swiss government that his leader Shaheed Benazir Bhutto, her mother, who is bed-ridden for many years and has lost her memory and President of his country were corrupt, he would loose his party’s support; and  if he doesn’t he would come in conflict with the Supreme Court. He has a Hamlet’s choice – to be or not to be. And no spirit even from the house of Pir’s he belongs to is going to come to advise him from the heavens.

A most probable option for the government is to stop shilly-shallying and as they say catch the bull by the horn. In the first place it can write to the court that the government has no case against the accused because they were not convicted for stealing the money in Pakistan. The Lahore High Court verdict on Cotecna & SGS case was struck down by the honourable Supreme Court. Unless the case which was sent back as a mistrial is reopened and the accused are declared guilty, how can Pakistan write to the Swiss government to disgrace itself? The second probable plea could be that one of the accused who had the courage of challenging the Talibanisation, while others have been kind to the perpetuators of terrorism, has been assassinated. The other accused is so sick that she cannot be expected to rise from the death bed to defend her case. And then the government would have to bite the bait and say the third accused happens to be the President of the country who enjoys immunity under the constitution. It can also raise the issue that writing against its own President to a foreign government amounts to defaming the country internationally.

What happens in the probable scenario: legal experts bet that the Supreme Court is likely to rule that the President cannot invoke immunity in this case as it was filed when he had no such protection. Seemingly this argument is based on the fact that when the Supreme Court is insisting for the reopening of the case in which President Zardari is an accused implicitly it has shown its mind that he does not enjoy immunity for his past sins.

So eventually a legal battle would first be fought in the Supreme Court on the immunity issue no matter how much it wants to avoid this “clash of institutions.” This is not unprecedented in the legal history of the country or the world. There are umpteen such cases where the sitting governments have challenged the Supreme Court’s decision. But there are fewer examples where the Supreme Court has gone against its previous decisions. In this case it would be more difficult because no judge was left out from the existing bench to give an impartial hearing to the case that challenges a portion of the earlier judgment of his brother judges.

Once protection of immunity would be lifted the President would once again have to contest the charges of taking kick-backs and then laundering them to the not-so-safe Swiss banks. The honourable option for the president would be to step down and contest the case. The obstinate course would be to let his lawyers contest while he gets an exemption from appearing in the court. President Clinton adopted this course in the Monika Lewinsky case and Italian Prime Minister Berlusconi is following this strategy every other day. President’s friends say he would go for this option if push comes to shove.

It is this clash of institutions, which was mentioned by President Zardari in his speech to the parliament’s joint session. To rub in his point he praised the Law Minister Babar Awan. The out-going Attorney-General Anwar Mansur has alleged that Awan was not cooperating for writing the most contentious letter in the political history of Pakistan. But in the forefront of this tussle would now be Prime Minister Gilani, who has so far played the role of reconciliation ambassador.

The moral argument is that the case should be followed as the Supreme Court wants to set an example that even the head of state cannot hide behind the immunity fortress if he/she has done wrong. Nobody can dispute this assertion. But there is another narrative also. At the risk of reiterating what I have written in a previous column let me say once again that in the same spirit of high moral grounds the Supreme Court should also take up the case of ISI pumping money against an elected government to the erstwhile leaders. This case was filed by octogenarian leader Asghar Khan. Wouldn’t it be a favour to this upright leader seeking justice in his life time? It would also be favour to the nation which has suffered a lot more than financial corruption cases by the intrigues of those who have brought down elected governments; who have validated trampling of democracy by heavy boots; and those who joined every usurper only to rise when they were discarded by them. Verily, coups that come through the barrel of the gun cannot be stopped by the judgments and constitutional clauses. But those who stand against such take-overs should be counted for their courage and for not hiding behind a doctrine of necessity. (ayazbabar@gmail.com)

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