Zardari Is Running Out Of Options
By Najam Sethi
THE Supreme Court has predictably paved the way for ousting President Asif Zardari from the Presidency.
Its 280+ page judgment against the National Reconciliation Ordinance (NRO) emphasises several points.
First, it argues that the notion of “trichotomy of power” is enshrined in the constitution and cannot be violated. This means that parliament, executive and judiciary must not stray from their domains and encroach on that of the others. The reference is to the ongoing conflict between the executive and the judiciary on the appointment of judges and the execution of the orders of the Supreme Court by the government, in particular to the negative attitude of the government in not putting some government members on the Exit Control List as suggested by the court and its reluctance to prosecute its members and advise the Swiss government to reopen the corruption cases against Mr Zardari in Geneva.
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 is loud and clear: activate the Swiss money laundering case in Geneva against Mr Zardari, get him convicted and bring back the plundered money. A conviction in Geneva would be sufficient grounds to knock Mr Zardari out of the Presidency.
Third, most critically, the court has relied on the “ Islamic injunctions” in the constitution, even though these are based on vague notions of “ morality”. In particular, reference has been made to Articles 62 and 63 of the constitution inserted therein 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 ameen. 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 ameen 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 has cut short his Punjab tour in which he interacted with his party’s rank and file. He has retreated to the bunker of the Presidency in Islamabad to take stock and fashion a counter strategy for survival. What will this be? First, he will try and put up a spirited legal defence. This will be done by delaying the proceedings and marshalling strong political and Islamic arguments against the use of Articles 62 and 63. Second, he will try and build public opinion and persuade sections of the media ( which are still bipartisan) in his favour as a persecuted leader who is being targeted by a vindictive and partisan Supreme Court. Third, he will marshal his allies in Sindh, NWFP and Balochistan to rally around his besieged government by holding out their common bleak prospects in the event of a mid- term election forced by the Supreme Court’s relentless pursuit of the case against him.
Should worse come to worst and he cannot escape being ousted from the Presidency, his options will not look too good.
One, he can go quietly into the night, 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. Two, 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 but strengthens the position and ambitions of the other players. The problem with this is the great difficulty of stitching such a compromise in view of the level of distrust that exists between all the contenders for power. Third, he can call for fresh elections and throw the country into a spin. 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. This is the most likely outcome of exercising this option.
There is a new and powerful troika reckoning for political supremacy in Pakistan. It comprises the army, judiciary and nationalistic media. Should the organs of the state succeed in expelling the organs of the people who are supposed to direct them, the political system of electoral and popular democracy, however incompetent and inefficient, will be scuttled in Pakistan, with far reaching adverse domestic and regional consequences.
The writer is the editor of The Friday Times (Lahore)
Source: Mail today, New Delhi