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Pakistan Judiciary Assaults Democracy


Behind The SC Verdict, There May Be A Larger Game-Plan To Unseat The PPP-Led Government

By Ajay Darshan Behera

24th Jun, 2012

The Pakistan Supreme Court's decision to disqualify Prime Minister Yousuf Raza Gilani is unprecedented in Pakistan's constitutional history. It is a judicial assault on Pakistan's fledgling democracy, if not a "judicial coup". While the ostensible reason behind the decision was Gilani's reluctance to reopen graft cases against President Asif Ali Zardari, it is still not clear if there is a larger game-plan to unseat the PPP-led government.

The PPP could have challenged the verdict as the power to disqualify a member of the National Assembly lies with the Election Commission and not the judiciary, but has chosen to avoid confrontation with an increasingly assertive judiciary. In all likelihood, the PPP decided that by avoiding a confrontation, it may buy some more time to manoeuvre the course of developments until the next elections.

Given the fact that very soon a caretaker government will be formed to oversee the next general elections scheduled to be held in February 2013, the timing of the decision raises many questions. Though the PPP coalition has elected a new Prime Minister in Raja Pervaiz Ashraf, but it is apparent that the judiciary has not stopped with the verdict against Gilani. A non-bailable arrest warrant was issued against the earlier nominee Makhdoom Shahabuddin by a Rawalpindi court at the request of the Anti Narcotics Force for his alleged involvement in a multi-billion-rupee drug scandal.

Further, the Chief Justice of the Lahore High Court has issued a notice to President Zardari for holding multiple offices despite an earlier declaration ordering against it. The court had ruled on 12 May 2011 that President Zardari should surrender the position of co-chairman of the PPP and that the presidency should not be used for political activities. A larger bench has been constituted for further proceedings of the case and President Zardari has been asked to reply within a week.

It is likely, that in the coming days many old and new cases against the PPP leadership would be brought up in the courts. The Memogate commission might be used again to target President Zardari. The fate of the new Prime Minister is a foregone conclusion. The Supreme Court will also expect him to write a letter to the Swiss authorities for reopening graft cases against President Zardari. The tension between the judiciary and the executive is likely to further escalate in the coming days.

Questions can be raised about the decision against Gilani — whether it was in accordance with the rule of law or for purposes of political expediency. Is this truly an independent judiciary upholding constitutional principles? Or is the judiciary being used for political purposes. It may be recalled that in 1999, when General Pervez Musharraf ousted the democratically elected government of Nawaz Sharif, Justice Iftikhar Muhammad Chaudhry had not only endorsed and legitimised the move taking oath on the Provisional Constitutional Order, but had also invoked the dubious doctrine of necessity to grant him the power to amend the Constitution. Is the Chief Justice above board now? Or is he pursuing a personal agenda?

It is hard to believe that the increased judicial activism, which can lead to great instability, does not have the concurrence of the military, particularly at a time when the country is going through difficult times. If the clash between the judiciary and the PPP paralyses the functioning of the government, there may be a move to set up the neutral caretaker government much earlier than its stipulated time.

In the absence of a process of consultation and consensus between the present government and the opposition, the Chief Election Commissioner will become the sole determinant of the selection and installation of such a government. At the moment, the Election Commission is presided over by an acting CEC, Justice Shakirullah Jan, a serving Supreme Court judge appointed by the Chief Justice. If he continues, then the next caretaker government will be chosen directly by the CEC and indirectly by the Chief Justice.

If the powers that be in Pakistan decide to postpone the elections on some pretext, the caretaker government can be given an extension by the judiciary. This will bring back the unelected representatives who have ruled Pakistan for half of its history. This may also be the only way to fix the Zardaris and Gilanis. But the political costs of this trajectory of developments for democracy in Pakistan will be severe. One has to wait and watch how the PPP plays its cards in the standoff with the judiciary in the next few months.

Ajay Darshan Behera is Coordinator, Pakistan Studies Programme, Academy of International Studies, Jamia Millia Islamia, New Delhi