Monday, December 28, 2009




    The epitaphs being written of Asif Zardari after the Supreme Court of Pakistan declared the infamous National Reconciliation Ordinance void ab initio are perhaps somewhat premature at this stage. Despite panic buttons being pressed by the PPP rank and file after the judgement, things seem to have settled down some. This does not mean that the legal minefield that has been laid out for President Zardari has disappeared. Indeed, the hostile courts will remain hanging like a sword of Damocles over the head of the PPP chief and his close associates. But the looming threat of the government being destabilised by the joint effort of the military establishment and some powerful media barons has receded for the time being. How long the ruling dispensation will be able to cling on in office - it has already lost power – is still not clear. What is clear, however, is that even if by some miracle or fortuitous circumstances the PPP-led coalition survives its full term, it will be as nothing more than a glorified municipality.

The ruling coalition, which always expected the NRO to be shot down, reacted rather strongly to the short order of the 17 judge full bench of the Supreme Court not because the law was declared ultra vires to the constitution but because the judgement appeared to have singled out President Zardari for special attention. The observations by some of the judges on the cases against Mr Zardari and the directive to reopen the cases in the Swiss courts only confirmed the suspicions that the entire legal challenge to the NRO was mounted in order to fix the co-chairman of the PPP. Interestingly, the one-sided nature of the court ruling created the perception that that the PPP leadership was being targeted by the judges (many of them with right-wing, Islamist leaning and who consider PPP as an anathema) which has in a sense worked in the favour of the PPP. The barrage of criticism – on the legal merits of the judgement (made by the Human Rights activist, Asma Jehangir) as well as the proclivity for grand-standing by the judges who appear to be even more populist than the politicians (made by one of leaders of the Lawyers movement for restoration of the judiciary, Ali Ahmed Kurd) – has raised serious questions over the fairness of the judgement.

Put on the defensive, the judges are now making efforts to be seen to be even-handed. The first indication of this was the notice they issued to the authorities for putting the name of Nusrat Bhutto on the Exit Control List. This was followed up by reopening all the cases of loan write-offs from 1971. If followed to their logical conclusion, the loan write-offs case will end up disqualifying practically all the members of parliament. Not surprisingly, the politicians, cutting across political lines, now seem to be closing ranks against the judiciary. For the moment, the biggest opposition party, PMLN, is playing to the gallery by speaking in favour of the judiciary. But the PMLN leadership also knows that unless the judiciary is reined in, they too will have to put up with judges running amok. More importantly, the PMLN leadership, especially the Sharif brothers, will almost certainly face disqualification if the loan write-off case is pursued seriously by the judges.

Clearly, the judges' zeal for populism is creating a situation where the politicians might be left with no choice except to castrate the judiciary and deprive it of many of the powers that the judges are arrogating to themselves. What is more, the military establishment too could end up siding with the political class against the judges. After all, if the courts reopen the infamous ISI pay-offs case – the Mehran bank scandal – then a lot of former senior officials will have their necks on the block. If it was only old cases like the Mehran bank scam, perhaps the current military leadership would not lose too much sleep. But there is every chance that cases and petitions will be filed that could affect the current military leadership, in particular the army chief, Gen Ashfaq Kayani. Already there are questions being asked as to why the Supreme Court is no longer pro-active on the 'missing persons' case. There is also pressure on the judges to prosecute Gen. Musharraf on charges of treason for violating the constitution, something that will also pull in his henchmen like Gen. Kayani.

The Pakistan army has already signalled that it is not in favour of the overturning the current system. Apparently, this was the message that Gen. Kayani delivered through the leading light of the Lawyer's Movement, Aitzaz Ahsan, to the chief justice, Iftikhar Mohammad Chaudhry, on the eve of the July 31 judgement in which the courts were ruling on the 'emergency' imposed by Gen. Musharraf on 3rd November, 2007. But while the Army is not interested in destabilising the current system, it had a lot of reservations against the national security policy of the PPP-led government. The Pakistan army resented the growing closeness of President Zardari and the US. It was also not comfortable with Mr Zardari's India and Kashmir policy or for that matter his unequivocal opposition to the Islamists (read Taliban) and his efforts to improve relations with the Karzai regime in Afghanistan. This was the reason why the dirty tricks department of the military became active against the government.

Over the past few months, the military orchestrated the entire campaign of vilification against Mr Zardari and his close associates and brought them under so much pressure that they have now thrown in the towel as far as making policy or taking decisions on issues of national security are concerned. As things stand, the army has once again started wielding complete control over issues relating to national security – namely, relations with US, India, Afghanistan, the nuclear programme and strategy, the War on Terror, policy on Kashmir. Giving a new dimension to the doctrine of separation of powers, the civilian government of Pakistan will now be responsible for everything except foreign, defence and security issues, which will be the sole preserve of the military. Even political initiatives that have a bearing on national security – for instance, the Balochistan package or the political reforms package in Gilgit-Baltistan – require a clearance from the Pakistan army.

With the civilian government going out of its way to placate the army – India-bashing is once again the flavour of the season and Kashmir issue is slowly but surely coming back on the centre-stage – the generals have got what they wanted. It would now be counter-productive for the army to force the government out of office. While there is little doubt that the army would like to see the back of Mr Zardari, it might well decide to tolerate him as a necessary evil. Pushing Mr Zardari out now could well upset the entire political applecart, more so after Prime Minister Yusuf Raza Gilani has thrown his weight behind the President. Gilani has understood that he won't be able to survive in office for very long – a few months at best – if Mr Zardari is ousted. Ideally, the army would like a light-weight like Mr Gilani to continue. But the number game in the national assembly militates against such an arrangement. The army is also apprehensive that move against Mr Zardari could easily lead to a reaction in Sindh, something that the army would like to avoid at a time when it is already embroiled in combating two insurgencies in FATA and Balochistan.

If the current dispensation collapses, this will leave basically two options. The first is a new election. Given the current security situation a new election doesn't seem very feasible. And even if it is held, it will most likely sweep Mr Nawaz Sharif's party into power. This is not exactly a very welcome prospect for the army because Nawaz Sharif is unlikely to be a pushover. The army also fears that he will wreck his vengeance on military officers who crossed his path when he was ousted by Gen Musharraf. Even worse, he will go out of his way to end the army's political role. The second option is what is known as the 'Bangladesh model' – a government of technocrats backed by the army. But this option gives rise to two important questions. First, the so-called 'Bangladesh model' was originally the 'Musharraf model' who in until the 2002 elections had a cabinet of technocrats. Neither the 'Musharraf model' worked miracles, nor the 'Bangladesh model'. So what will change now?

The second question relates to the courts. The 'Bangladesh model' has no constitutional sanction. Unless the courts approve such an arrangement by once again resurrecting the 'doctrine of necessity', they will be constrained to strike it down. And if they don't strike it down, the courts will lose every shred of credibility and legitimacy. Of course, under the guise of the 'Bangladesh model' the army could overthrow the current judiciary. But this would again bring the situation back to square one where the army could end up being pitted against the public, something it cannot afford especially when it needs the public support in its fight against the 'bad' Taliban.

Given the dialectics of the situation, it therefore serves the interest of everyone if the Zardari/Gilani combine continues to occupy their offices but without wielding any real power. The only spoiler in this whole thing could be the Supreme Court. Unless the judges take a step back and desist from opening multiple Pandora's boxes, they will almost certainly end up destabilising the entire system. What remains to be seen is whether the judiciary survives this destabilisation or whether the politicians and military establishment gang up and fix the judiciary, which in turn will have its own repercussions for the Pakistani state structure. Either way, Pakistan will face great instability and unrest.


    <1650 Words>                    28th December, 2009



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