By Najam Sethi
20 January, 2012
Just as pundits were proclaiming the inevitable and swift demise of the prime minister, Yousaf Raza Gillani, as a prelude to regime change via fresh elections, the wily Zardari government has unveiled its secret weapon to diffuse the simmering crisis with the Supreme Court and extend the endgame. It is none other than Aitzaz Ahsan, the silver-tongued barrister who successfully led the Lawyers Movement in 2007-09 for the restoration of the Chief Justice of Pakistan, Iftikhar Mohammad Chaudhry, but had been estranged from Mr Zardari since the PPP came to power.
Last week Mr Ahsan accepted the job of defending the prime minister, Yousaf Raza Gillani, in the Supreme Court when the latter goes there to answer the show cause contempt notice on 19 January. Mr Gillani has refused to obey the orders of the court and write a letter to the Swiss authorities to reopen the money laundering case against Mr Zardari and Ms Bhutto.
The government's strategy is now clear. The PM will not make any political speech of either defiance or retraction in the court. He will not offer to resign or make himself liable to contempt of court. Instead, Mr Ahsan will argue that the PM didn't write the required letter only because President Zardari enjoys constitutional immunity from criminal proceedings in any court at home or abroad while he remains president. Until now, despite the court's prompting, the government has not come forward to claim presidential immunity, preferring instead to obfuscate and delay matters.
Mr Ahsan has a strong case. The constitution is unequivocal about it. Even the opposition leader, Nawaz Sharif, has publicly admitted that the office of the president enjoys immunity from criminal proceedings. If Mr Ahsan wins the argument, President Zardari and the PM will be off the hook. If he loses, he is entitled to file, in turn, an intra-court appeal before a larger bench and then a Review Appeal. If he loses at every stage, then the PM will have to write the required letter, failing which he can be convicted for contempt of court and be disqualified from holding public office for five years. In that eventuality, the coalition government will have to nominate another member of parliament from the ruling party as prime minister and obtain a vote of confidence for him.
A compromise can also be reached whereby the SC is agreeable to a letter from the government to the Swiss authorities that says that the case against Mr Zardari may proceed after his term as president of Pakistan ends in 2013. This would be based on cancelling an earlier letter written by the Attorney-General, Malik Abdul Qayyum, in 2008, that withdrew the government of Pakistan's interest in the proceedings in the Swiss court against Mr Zardari before Mr Zardari became president and before the National Reconciliation Ordinance, that closed all prosecutions against Mr Zardari, was struck down by the SC. In this manner, the court may accept presidential immunity but get the government to write a letter to the Swiss authorities to revive the case against Mr Zardari after he relinquishes the office of the president of Pakistan.
These proceedings in the contempt of court case, however, should not be analyzed in isolation from two other destabilizing developments that are unfurling simultaneously. The first is the Memogate case against Ambassador Husain Haqqani for allegedly undermining national security. The second is secret negotiations between the government and opposition to call early elections and forestall any adverse judicial activism or military intervention that derails the political system at the expense of the two mainstream parties.
In Memogate, the main accuser, Manzoor Ijaz has inexplicably postponed a trip to Pakistan to testify before two commissions of inquiry as required. If he decides not to attend for whatever reason, the case will fall flat and the government will breathe easier. If he attends and, along with DG-ISI Lt Gen Ahmed Shuja Pasha, is given undue laxity by the court during testimony or objectionable consideration during cross examination, the commission's findings will not be credible. The case is a veritable can of worms and no amount of "national security imperatives" can keep them from spilling out if the judges and generals persist in pursuing it.
Therefore negotiations between Mr Zardari and Mr Sharif hold out the greatest hope for a fair and efficient way of effecting regime change. There seems to be an agreement already on the modalities of conducting a free and fair election under a neutral interim set-up. The contentious issue is when. Mr Zardari wants it as late as October and November while Mr Sharif is insisting on April or May. Since the military and courts are generally arrayed against the government like the opposition, Mr Zardari will require to demonstrate an extraordinary agility to delay matters much further. Even Aitzaz Ahsan may not be able to deliver much mileage on that front.
Source: The Friday Times