Prime Minister Yousuf Raza Gilani’s readiness to stand trial for contempt of court is something of a mystery. It is not a mystery in the sense that there is a sense of wonder created by the question of how he did it. That is known. The question arising is: Why? One factor has been that the Prime Minister has not been indicted for scandalisng the court where he is to be tried, which is the Supreme Court of Pakistan. He is being tried for disobeying its orders, in particular for not writing to the relevant Swiss authorities asking them to initiate proceedings against the President in connection with the money in Switzerland allegedly in its custody, and which he is alleged to have obtained by corruption. The nation, which wants that money back, believes that the President should give up that money, but the Supreme Court basically wants itself to be obeyed. Because of that, it has indicted the Prime Minister. Because it seems reasonably clear that the Supreme Court sees itself as the ultimate interpreter of the Constitution. That might be the reason for the indictment: That the Prime Minister sees himself, and thus the Executive Branch as another, equally valid, interpreter of the Constitution.
On the face of it, this desire of the Prime Minister has a certain validity. After all, the officials of the Executive, of which the PM is the head, attempt to make legal decisions and take legal actions. Therefore, their actions and orders attempt to follow the law. In short, they attempt to act legally. That is what the Prime Minister’s oath of office, to which Mr Gilani has referred, is all about: Acting legally. That means, in the Pakistani context, acting according to the Constitution. Therefore, the officials of the Executive, both federal and provincial, from the Prime Minister down to a traffic constable, must act according to that Constitution. That means that they must be sure that the regulation they are following is according to the law, and that law is according to the Constitution.
Interestingly, the military is also subject to this, and relies on this. It is this legalistic nature of the military that has prevented martial law from degenerating into mere jungle law, and has prompted all imposers of martial law in Pakistan to impose a ‘Continuance in Force’ Order, or even a new Constitution, or PCO. That at least seems to one of the effects of the judiciary having joined the process as a supporter of the military.
However, anyone who is aggrieved by the official’s administration of the law will challenge it. To prevent such extreme actions as self-immolation or armed insurrection, the judiciary has been provided the exclusive right of deciding. One of the many conditions for that judiciary is interpreting the Constitution. The decision as to whether anyone behaved according to the law, or by violating it incurred prescribed penalties, has been made by a separate body, which has had exclusivity in its decisions. If it decided that an official has not acted according to the law, that official had no choice but to act as the deciding court had directed, and if he felt like it, to swear (under his breath) at the court and then…….to carry on.
Therefore, the course that the PM should have adopted would have been to exclaim in surprise, even disgust, at the judgement made by the Supreme Court, and then proceeded to act as directed, which would have been to ensure the writing of the letter to Switzerland. Instead, he proceeded to prefer his own interpretation of the Constitution, which was a rival one, which was that the President had immunity.
The immunity argument has not been received very favourably, mainly because it has no basis in people’s conception of the Pakistani state. It is apparently a holdover from the Raj, when the Viceroy enjoyed the privileges of the monarch, who could do no wrong. That did not mean that he was infallible, it only meant he could not be prosecuted. After all, the courts were supposed to be his, administering the laws promulgated by him or his predecessors. However, Pakistan is supposed to be an Islamic state, and in Islam, there is no concept of immunity. As a matter of fact, this immunity is quoted in that debate about repugnancy. The laws of the country must not be repugnant to Islam. That is a constitutional provision. But what about parts of the Constitution itself that are repugnant to Islam. Like what? Is the next question. And the answer is, for example, the immunity clause.
The reason for this is that the Constitution assumes a special position for the President, who is in the place of the Viceroy. The immunity of the President, and of other elected officials, is supposed to apply to their official actions, where many actions are taken in their name of which they do not even have knowledge. For example, appointments of Grade 17 officers in federal services, including fresh-faced lecturers in government colleges in Islamabad, are made in the name of the President. The actual decision is supposed to be taken by the Federal Public Service Commission, the President’s name is used on a form letter signed by a section officer in the Education Ministry, but if the appointment is improperly made, the President will get it in the neck. It is to preserve him from such a fate that immunity has been given to him. This was put in the Constitution, presumably with the consent of the Islamic parties, which all signed the Constitution, but the people still have reservations about it.
It is symptomatic of the general clamour drowning out specific noises that the Prime Minister’s supplementary declaration, that the cases against the President are politically motivated, did not drawdown the sort of accusations that followed what he said about the military. Or perhaps, no one really believed that there was need for any more evidence that he was on a collision course with the judiciary. The political motivation argument would stand the test of a Swiss court, where the Pakistani state has no influence, not even that (which it still has in Pakistan) of a court feeling the need to prove its independence.
One glaring motive is that of saving the President, and that statement by the Prime Minister reveals it. However, what the PPP should realise is that the Supreme Court has nothing against the President. But not having anything against him does not mean favouring him. If the Prime Minister expects the Supreme Court to help in covering up any crimes committed by the President, he is mistaken.
The Prime Minister has taken the stand that conviction would mean losing office. That would mean a replacement, and it has already been decided that that would come from within the ranks of the PPP. If that indeed took place, then it would put off elections. It would also mean that this Parliament, too, would see a change of Prime Minister before its end. However, the removal of Mr Gilani would not solve the matter, for the letter would still remain unwritten.
Then it would depend on the USA. That Musharraf had a pact with the President’s late wife, Benazir Bhutto, is borne out by then US Secretary of State Condoleezza Rice in her memoirs. Therefore, the present government has USA’s blessing. However, the present government has had difficulties rooted in two things. First is US imperialism, which has made them disliked. Then has been the regime’s greed and incompetence, which has made it less useful than was supposed. There is still the memogate affair in the background, which has more American figures than the NRO. The President must not forget the fate of his predecessor.
The writer is a veteran journalist and founding member as well as Executive Editor of TheNation.