A coup by any other name would be as treacherous…
If democracy and participatory governance are the cherished ideals, the removal of the elected civilian government by non-elected state institutions like the judiciary or the military should be a matter of grave concern. This is a negative development that adversely affects the long term prospects of elected civilian institutions and processes.
A number of commentators have described the removal of the prime minister by the Supreme Court as a “judicial coup” or a “coup of other kind.” The major reason for such interpretation is that the Supreme Court does not have the specific power to dislodge a prime minister but it stretched its domain to do that, creating a precedent for the future.
In the past, the military used to remove the prime minister through a coup but now the Supreme Court, another non-elected state institution, has acquired the power to do that. The only difference is that the military has the capacity to take over government because of its organisational skills and the possession of the gun. The Supreme Court lacks that. Nevertheless, the removal of the prime minister by the Supreme Court causes instability and makes the political leaders more vulnerable to manipulation by the military. It encourages the opposition to approach the judiciary for anything the government does to their disliking rather than seeking solutions through political means.
The superior judiciary is now a player in the political and administrative domains. It has relied on the notion of judicial activism whose limits are defined by the judiciary itself. The military is confronted with a new political situation where direct assumption of power has become problematic. The emergence of multiple state and societal power centres in Pakistan against the backdrop of fragmentation of social and political fabric the control of the Constitution Avenue in Islamabad does not necessarily ensure a smooth military takeover. The greater problem is governance in a country that is fast becoming un-governable. The military is, therefore, expected to use the methods other than a direct coup to assert its well-known domineering role.
The knocking out of Makhdoom Shahabuddin from the race for prime minister shows that the military can use its presence in civilian institutions to manipulate political competition. The Anti-Narcotics Force, technically a civilian institution but managed primarily by a major general and a brigadier, pursued unprecedented fast pace action by getting warrants of arrest for Makhdoom Shahabuddin and sending a force to his house to arrest him. All this was done in a few hours on the day nomination papers were filed. He was sure to become prime minister as the official PPP candidate. Therefore, no bureaucratic institution can dare to take such a fast pace action without blessings from the highest level authorities. There was no civilian government on that day. For the ANF, the blessings had to be from the army top brass, who sent a message of displeasure to the PPP leadership.
The new prime minister will find it difficult to cope with the pressures from the superior judiciary and the military. In his first address to the National Assembly, the new prime minister talked of the supremacy of the elected parliament. Within a day, he received a rejoinder from the chief justice who questioned the notion of supremacy of the parliament in an address on June 23. He said that the parliament could not approve a law that violated the constitution, Islamic injunctions or fundamental rights and that its actions “will be open to judicial review” on these issues. According to press reports, the chief justice maintained that judicial review was “to check the abuse of power by public functionaries and ensuring just and fair treatment to the citizens.” This statement raises the fundamental question of restraints, if any, when the Supreme Court assumes the task of checking the elected parliament and executive? Democracy requires institutional balance and that the state institutions interact with each other with deference rather than one institution commanding the political system.
The Supreme Court is expected to order the new prime minister to comply with its order to his predecessor for writing a letter to Swiss authorities to reopen corruption cases against President Asif Ali Zardari. In a way, Pakistan has acquired a distinction in the international system because its Supreme Court is perhaps the only highest court in any country that wants its sitting president to be put on a trial in another country.
This is likely to revive the conflict between the Supreme Court and the federal government. The newspapers reported on June 23 that the Lahore High Court has asked President Asif Ali Zardari to explain his position on continuing to combine the presidency with leadership of the PPP and the holding of political meetings in presidency with reference to the court’s directions on this issue in 2011.
Three major factors enable the superior judiciary and the military to build pressure on the elected federal government. First, the poor performance of the federal government and especially its failure to ensure electric power supply and faltering economy, have weakened its support. It has not been able to create a credible civilian alternative that enjoys widespread popular support.
Second, a section of the politically divided lawyers supports the Chief Justice and describes the charges of money-making against the Chief Justice’s son as a conspiracy of the federal government. If the pro-PPP lawyers counter the pro-chief justice lawyers it will cause violence in bar councils.
Third, three political parties (PML(N), PTI and Jamaat-e-Islami) have their own axes to grind against the federal government. They are supportive of the Chief Justice and the Supreme Court because the current judicial activism helps to achieve their immediate goals of removing the PPP from power.
All this shows that whenever the Supreme Court adopts a tough line towards the PPP-led federal government, a big section of the political community would support it. The opposition political forces are not worried at this stage about the long term implications of judicial activism on the future of democracy and civilian primacy.
The new prime minister’s primary challenge is his survival. All other issues of governance, economic management and foreign policy become secondary. Even the opposition is not concerned about these matters. The Supreme Court and the military have their exclusive institutional interests.
This is a depressing power struggle involving the state institutions and competing political forces. There is hardly any hope for civilian primacy and democracy. One wonders how long Pakistan will be able to operate as a functioning state.
The writer is an independent political and defence analyst.
It is a sad day when a scholarly person writes:
<<The Supreme Court is expected to order the new prime minister to comply with its order to his predecessor for writing a letter to Swiss authorities to reopen corruption cases against President Asif Ali Zardari. In a way, Pakistan has acquired a distinction in the international system because its Supreme Court is perhaps the only highest court in any country that wants its sitting president to be put on a trial in another country.>>
The author has simply repeated the arguments being made by the PPP jiallas which have no basis in actual reality. This was also categorically shown when Aitzaz Ahsan was arguing the contempt case for Gilani and made similar erroneous statements in the court and then was forced by the court to actually read from the NRO decision and the 6 month conviction of Zardari in the Swiss courts.
Where as what the supreme court had really said in its order was to undo the illegal actions taken by Malik Abdul Qayyum and restore the situation to whatever it was before this correspondence. Once this had been done, whether actual proceedings will continue will be determined by the Swiss courts based on the status of Presidential immunity which any way is not applicable in CIVIL proceedings to which Pakistan was a party.
The bench in its December 16, 2009 order had held:
(viii) that since in view of the provisions of Article 100(3) of the Constitution, the Attorney General for Pakistan could not have suffered any act not assigned to him by the Federal Government or not authorized by the said Government and since no order or authority had been shown to us under which the then learned Attorney General namely Malik Muhammad Qayyum had been authorized to address communications to various authorities/courts in foreign countries including Switzerland, therefore, such communications addressed by him withdrawing the requests for Mutual Legal Assistance or abandoning the status of a Civil Party in such proceedings abroad or which had culminated in the termination of proceedings before the competent fora in Switzerland or other countries or in abandonment of the claim of the Government of Pakistan to huge amounts of allegedly laundered moneys, are declared to be unauthorized, unconstitutional and illegal acts of the said Malik Muhammad Qayyum; (ix) that since the NRO stands declared void ab initio, therefore, any actions taken or suffered under the said law are also non est in law and since the communications addressed by Malik Muhammad Qayyum to various foreign fora/authorities/courts withdrawing the requests earlier made by the Government of Pakistan for Mutual Legal Assistance; surrendering the status of Civil Party; abandoning the claims to the allegedly laundered moneys lying in foreign countries including Switzerland, have also been declared by us to be unauthorized and illegal communications and consequently of no legal effect, therefore, it is declared that the initial requests for Mutual Legal Assistance; securing the status of Civil Party and the claims lodged to the allegedly laundered moneys lying in foreign countries including Switzerland are declared never to have been withdrawn. Therefore the federal government and other concerned authorities are ordered to take immediate steps to seek revival of the said requests, claims and status;
After reading this article by Askari Sahib, he has really lost what ever credibility he had , at least for me, when it comes to analysis of Pakistani politics.
Thanks Hassan Askari Can not agree more to what u said
Pakistan presents the best example of arrogance, manipulation, and self-projection. If there is anything at stake it is the state institutions. I always believed that institutional interests come first, but in Pakistan it is the other way around. Persons of power seem to be more important than institutions.
Why should I trust in the functioning of democracy if the CJ of the apex court acts like a Thanna Muhrar of a rural police station? He thinks he is doing a great service by his machoism and that also by climbing over the shoulders of know-nothing legal fraternity.
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