Zardari’s diminishing options
Najam Sethi's E d i t o r i a l in The Friday Times of 21 Jan: 2010.
The Supreme Court has predictably paved the way for ousting President Asif Zardari from the Presidency. Its 280 plus page judgment against the NRO emphasizes several points.
First, it argues that the notion of “trichotomy of power” is enshrined in the constitution and cannot be violated. This means that the parliament, executive and judiciary must not encroach on the domain of the others. The reference is to the ongoing conflict between the executive and the judiciary on the appointment of judges and the government’s negative attitude regarding the court’s orders with reference to the Exit Control List and the reopening of the Swiss case in Geneva. A conviction in Geneva would knock Mr Zardari out of the Presidency.
Second, the court has cited the history of the successful legal battles by the Philippine and Nigerian governments to get the Swiss government to return the billions looted by dictators Ferdinand Marcos and Sani Abacha respectively and stashed away in Swiss banks. The message to the government is loud and clear: activate the Swiss money laundering case in Geneva against Mr Zardari and bring back the plundered money.
Third, most critically, the court has relied on vague “Islamic injunctions” and notions of “morality” in the constitution, in particular to Articles 62 and 63 of the constitution inserted by that great Islamist fraudster-gangster, General Zia ul Haq. These relate to conditions of qualification and disqualification from being a member of parliament (like the president of Pakistan). Article 62 (d): he is of good character and is not commonly known as one who violates Islamic injunctions . Article 62 (f): he is sagacious, righteous and non-profligate and honest and amin. Article 63 (a): he is of unsound mind and has been so declared by a competent court. Article 63 (g): he is propagating any opinion, or acting in any manner, prejudicial to …morality… or the integrity or independence of the judiciary of Pakistan, or which defames or brings into ridicule the judiciary or the Armed Forces of Pakistan .
The case for the prosecution is likely to proceed thus: (1) Article 62(d) applies because Mr Zardari is commonly known to be corrupt, hence his universal nickname as Mr 10 per cent. (2) Article 62(f) applies because he not amin or sagacious or non-profligate because he broke his pledge to restore the judges and repeal the 17th amendment. (3) Article 63(a) applies because he submitted a medical certificate to the Swiss Court some years ago saying his mind was disturbed and he couldn’t attend the proceedings. (4) Article 63(g) applies because he has been alluding to the judiciary and army as “conspirators” – hence defaming and ridiculing them – and undermining the integrity and independence of the judiciary by refusing to accede to the orders of the Supreme Court of Pakistan viz appointment and elevation of judges etc.
It may be noted that none of these provisions has ever been used to knock out any member of any parliament, high or low, in Pakistan. Indeed, in 1985 the Lahore High Court threw out a petition against a member of the provincial parliament pegged to these provisions because of difficulties inherent in interpreting the moral provisions of these “Islamist” articles. Therefore the Supreme Court will have to risk its credibility for all times to come if it wants to get rid of Mr Zardari on the basis of any of these provisions.
Mr Zardari’s strategy can be predicted. First, he will put up a spirited legal defence by marshalling strong political and Islamic arguments against the use of Articles 62 and 63. Second, he will build public opinion and woo sections of the media (which are still bipartisan) as a “persecuted leader” who is being targeted by “vindictive and partisan” judges. Third, he will marshal his allies in Sindh, NWFP and Balochistan by holding out their common bleak prospects in a mid-term election. Should worse come to worst, however, he can opt to hand over to the PPP’s Senate Chairman, get another PPP loyalist or political ally elected as President, and wield power from behind the scenes as head of the PPP. The problem with this scenario is that the Supreme Court is bound to hound and jail him on the basis of the cases against him which will stand revived. Or he can try and find a compromise solution behind the scenes with the judiciary, army and opposition which allows him to survive as a toothless president. The problem with this is the great difficulty of stitching a workable compromise in view of the level of all-round distrust. Third, he can call for fresh elections. The problem with this scenario is that the army and judiciary could join hands to postpone the elections for several years and use the time and space to decimate all politicians regardless of party affiliation.
There is a new and powerful troika of the army, judiciary and media jostling for political supremacy in Pakistan. If the organs of the state succeed in expelling the organs of the people who are supposed to direct them, the political system of electoral, popular and most importantly federal democracy, however incompetent and inefficient, will be derailed in Pakistan with adverse domestic and regional consequences.