I HAVE always considered that the success of lawyers’ movement in Pakistan in 2008 was its first war of independence. The formation of Pakistan was the result of a peaceful agreement which it signed with India under the aegis of the British government.
The primacy of Pakistan’s Supreme Court is because of that movement. There was a time when the Supreme Court would uphold the army coups as it did in the cases of General Mohammad Ayub and General Zia-ul Haq. A new interpretation to the Constitution, the rule of ‘necessity’, was provided to give legitimacy to the coups.
Powerful entity
The court has now graduated to be a powerful entity so as to arraign even Prime Minister Yousaf Raza Gilani for contempt and indict him. He, in turn, has challenged the judgement and has decided to prove the charges wrong through evidence he will provide in the next few days.
Supreme Court’s Chief Justice is the same Iftikhar Mohammad Chaudhry who suffered at the hands of the army because he dared to go against the wishes of the then chief of army staff, General Pervez Musharraf. Justice Chaudhry was confined to one room, along with his family, for months and made to undergo more or less a solitary imprisonment. That in a country, where all other institutions are tottering, the emergence of Supreme Court is indeed evoking hope for the future of democracy. After all, the judiciary is the bedrock in such a system.
Yet, I have not been able to understand the logic of criticism that by strengthening the judiciary, the polity is weakening because such a process is at the expense of the power that the executive and Parliament enjoy.
For instance, the institutions in India have gained because of a series of judgements. The recent one, which Gilani’s lawyer Aitzaz Ahsan has quoted to defend the Pakistan Prime Minister, is the cancellation of 122 licences of allotment in the 2G spectrum (mobiles) scandal on the ground that Prime Minister Dr. Manmohan Singh did not know about the letters which his office (PMO) had received from the indicted former Telecom Minister A. Raja. The blame was put on the officials and advisers. So has been the tenor of Aitzaz Ahsan’s arguments before the Pakistan Supreme Court.
In India, the judiciary has gone to the extent of laying down that Parliament cannot change the basic structure of the Constitution, meaning thereby, secularism, federalism and the parliamentary system. True, Parliament represents the people but in the heat of the moment or any vociferous movement, Parliament can be swayed by the mood in the country prevailing at a particular time. The same principle that the basic structure Constitution cannot be violated holds good for Pakistan as well, even though its Supreme Court has not said so unequivocally.
By kicking up the dust, the real issue of corruption cannot be obscured. President Asif Ali Zardari is said to have laundered billions of dollars and stashed in Swiss banks. The fact that then President General Musharraf condoned the crime through an ordinance (the National Accord and Reconciliation Act) does not mean that Zardari can appropriate the money which really belongs to the Pakistan exchequer. Gilani is only Zardari’s face. He owes his office to him and therefore it was natural that he should take the responsibility of Zardari’s acts of omission and commission.
Gilani’s defence that Zardari enjoys immunity under the Constitution may be all right for legal purposes, although the Supreme Court would probe whether immunity is absolute or whether it can be questioned in any way. At least the Supreme Court can order that the money stashed abroad be brought back to Pakistan even if it ‘remains’ in Zardari’s account. Immunity means that no action can be taken against Zardari since he is the President who enjoys such powers under the Constitution. Yet, immunity cannot be stretched to a point where Zardari is not directed to transfer back the stashed money to the Pakistani banks.
Chief Justice Chaudhry was not lessening the stature of the executive by asking Gilani to write to the Swiss authorities to reopen the case of Zardari’s assets in banks in that country. That PM Gilani sits over the court’s order for more than two years shows his disdain for the judiciary. And this also shows the arrogance of the executive. To characterize a case of corruption as an attack on government or, for that matter, Parliament, is not to see the wood for the trees. The corrupt, however high in position, should be brought to book to revive people’s faith in democracy.
Too many instances of graft in South Asian countries involving top people have disfigured democracy in the region and there is worthwhile legislation coming for combating graft.
It is difficult to guess about the fate of Gilani’s trial for contempt. But it will be an embarrassment for Pakistan. Already the court has appointed Attorney General Anwar-ul Haq as the prosecutor. This amounts to pitting the government’s top legal adviser against the Prime Minister. The ruling Pakistan People’s Party (PPP) has rightly said that it is a sad day in the history of Pakistan since the serving prime minister has been charged. If one were to look at the case from a different angle, the court’s judgement could be described as a day when democracy touched the greatest height in Pakistan — a country where the judiciary was a party to the rule of the armed forces. This is something rare in South Asian countries.
Black money
The black money, stashed abroad, is going to haunt the Manmohan Singh government because the director of Central Bureau of Investigation (CBI) has said at a public forum that the Indians have unaccounted money, as much as Rs.24.5 lakh crore (about $500 billion) in banks abroad. He has also been frank enough to say: “If king is immoral, so will be the subjects.”
The normal reaction after the disclosure would have been an all-out effort to get back the money. Yet there is no worthwhile action because many depositors belong to political parties, including the ruling Congress. The CBI director has himself admitted that it would be difficult to bring back the money: “The probe is complex, time consuming, costly and requires political will.”
Now that the example of Pakistan’s Supreme Court is before us, some individuals can approach our Supreme Court to direct the government to bring back the money to India. Here the hurdle of immunity does not come in. The committee which the Supreme Court appointed in an earlier case to look into the matter is too slow in processing. Some shock treatment to the government is needed.