Guest Blog | By Ezzat Dawood-Zai | 27 December 2009

On the eve of the Supreme Court’s landmark judgment on NRO, Prime Minster Yousuf Raza Gillani sent a message to the Chief Justice, through the Attorney General, where he assured the Court that the Government respects the judgment, which will be implemented in letter and spirit. That was on the day of the judgment, 16 December, 2009. He then went to see the president and held several meetings. During these meetings, he seemed to have undergone a change of heart.

Afterward, in a pre-arranged Q&A with the press following a Christmas function, the PM spoke in a giddy and excited mode, taking questions on the decisions of the Supreme Court. What was evident from this chit-chat was that government was headed for a collision with the Supreme Court.

When the PM was asked whether Mr. Rehman Malik, the interior minister, will be arrested, he replied, “Who will arrest him? He is the one who arrests people.” A reporter asked whether provincial government of Punjab may arrest him if he visits that province. The PM replied that we have a coalition government in Punjab [so no one dare do that to us]. Asked about the Swiss Government case against the President, the PM got still more excited, as he had found something he was looking for. In a lengthy response, the PM defended the position of the President, and accused those who had previously spent billions of public money in prosecuting these cases.

He said, “It will be tantamount to double jeopardy to ask him to resign on the grounds of cases for which he has already undergone 12 years’ imprisonment.”  “Tell me, what was the new thing in these cases,” he added. “You are now playing to the galleries. These were same cases that were framed and billions of rupees were spent on them from the government and secret funds. Nobody questioned the utilization of these funds. How many of these cases were proved?” [Emphasis added] he pointedly asked the questioner. He concluded by saying that now they [court] are asking us to open cases in another country, which [Swiss Government] in response says that we do so first in our own country.

The tone set by the Prime Minister has been swiftly adopted by a number of his Cabinet ministers and other party leaders. The Governor, Punjab, who was a leading accomplice in disqualification saga of Sharif Brothers, used fairly harsh language in criticizing the judgment. He said it was supposed to be a two line judgment which was unnecessarily lengthened and went into areas that were never the prerogative of the court. Mr. Jehangir Badar, Secretary General of the Party, said he was expecting justice and not fun from the Court. Fauzia Wahab, Information Secretary of the party termed the judgment ‘selective’. Another party leader mocked the Supreme Court by advising the Foreign Minister to approach the court to seek country’s foreign policy. Numerous leaders from the Sindh chapter of the party have issued statements that have termed the judgment as basically against a Sindhi President, and thus insinuating that there is an ethnic dimension behind the judgment.

This defiant mood paraded by the PM is in sharp contrast to his conduct during much of his tenure in the office. To the chagrin of the President and many of his cronies, PM had steered himself clear of the follies and missteps that his government took largely on the behest of the President, such as the ill-fated decision of the Dogar Supreme Court disqualifying Sharif Brothers and consequent removal of PML (N) government in the Punjab. He not only distanced himself from such decisions, but took no pains in defending the President when he was ruthlessly attacked on the floor of the National Assembly, many a time, during his presence in the house. His adopting a defiant posture has disappointed many who had thought he was playing a delicately balancing role in an otherwise volatile political situation.

Alongside this game of defiance of the Court decision, a whispering campaign has also been launched in the side, craftily raising finger toward the GHQ for orchestrating the mess in which the government finds itself. Analysts are convinced that Mr. Kamal Azfar – the lawyer who belatedly appeared in the Court on behalf of the Federal Government, and shocked everyone by stating that the GHQ and CIA were behind in destabilizing the government, later retracting from this position – was, after all, not entirely foolish. The leader of the PPP in Punjab Assembly and Senior Minister in Punjab Government, while addressing a political rally in favor of Mr. Zardari, warned that his party will not let generals to black-mail it.

The judgment of the Supreme Court, though lauded widely, has come under serious criticism from some of the liberal and human rights activists. Their main contention is that the judgment has averred to Articles 62 and 63 of the Constitution (that deal with the qualification and disqualification of members of parliament), which were inserted under the 8^th Amendment, which was first made by General (r) Ziaul Haq under his Islamization policy and later ratified by the Parliament in 1985 which was elected on non-party basis. Additionally, many liberals and members of the Left smell a military hand in this situation and thus consider it a politicized judgment aimed at subverting democracy. Although these views are not widely shared even in liberal circles, they have given a helping hand to the designs of the government, which seems determined to scuttle implementation of the judgment.

Numerous legal experts have warned that these statements fall within the scope of contempt of court and that the Supreme Court has the necessary constitutional powers to take action against all those responsible. In case this happens, an explosive constitutional void will be created as the Court will have no recourse but to order all government authorities, including Armed Forces, to come to the aid of the Court in implementing its decisions. There is also the likelihood that lawyers, the public in general, and the media may rally again in support of the Court and force the government to implement the judgment in its true spirit.

One wonders why PPP has adopted a suicidal course. Could it be that they know they have an indefensible position? In that case, a perverse logic of slandering and destroying credibility of the court before bowing to its judgment appears to be at work. It’s for this reason, it seems, that PPP leaders are threatening the use of so-called Sindh card. Similarly, hectic efforts are afoot to appease the PML (N), through the promise of early passage of a Constitutional Amendment that would undo the infamous 17^th Amendment including the end to the current ban on becoming the prime minister for the third time. Curiously, after some of its members demanded Mr. Zardari’s resignation, the party backed out from this demand, when PM Gillani met with the Chief Minister in Lahore a few days ago. Rumors have it that PML (N) is also worried with the tone and tenor of Court’s judgment and sees problems for its own rule if it gets a chance in the future.

Under the circumstances, the country is headed for a constitutional breakdown. Unfortunately, this will not be the first time such an ugly situation will emerge. Back in 1997, when Mr. Sharif was embroiled in a lengthy contempt of court battle with the then Chief Justice, Justice Sajjad Ali Shah, a constitutional crisis was created. However, Mr. Sharif, through his close associates, including Mr. Rafiq Tarar, who later became President of Pakistan, was able to successfully maneuver a rebellion from within the Court against Justice Shah, who was subsequently ousted by the Court from the position of Chief Justice, and thus managed to survive and continue his term for another two years. This time round there is no such possibility as the brother judges solidly stand behind their chief justice, as was also evident from unanimity of the judgment from the 17 member bench. The writing on the wall is quite clear: implement the judgment or face an axe.