The confrontation and beyond

No respite in sight

The Supreme Court’s latest order to Prime Minister Raja Pervez Ashraf for writing the letter to Swiss authorities for re-opening of corruption cases against President Asif Ali Zardari has set the stage for another political and constitutional crisis in Pakistan. It is generally believed in the political circles that the Supreme Court will declare the operating parts of the new contempt of court law that saves the prime minister from contempt proceedings as unconstitutional and proceed against the prime minister. However, keeping in view the Supreme Court’s policy of stretching its domain of authority, it may adopt some direct course of action to impose some punitive action against the prime minister.

The confrontation between the elected federal government and the parliament on the one hand and the non-elected Supreme Court on the other hand is now a reality. This has increased discord in politics and created more uncertainties about the future of democratic political arrangements.

Whether a person supports the Supreme Court’s activism or expresses strong reservations about it, this has strong implications for the political domain, especially for the federal government. Any discussion of politics in Pakistan today is not complete without talking about judicial activism since 2009. In the past, elected civilian institutions and leaders had to cope with pressure from the military. Now, these have to deal with the pressure from two non-elected state institutions, i.e. the military and the judiciary.

Judicial activism targeting the federal government has divided the politically active circles on the role of the superior judiciary in the political domain. Though both sides invoke democratic principles to support their perspectives, their positions are motivated primarily by political considerations. The PML(N), the PTI and the Jamaat-e-Islami that want to knock out the PPP-led federal government are supportive of the Supreme Court. As they cannot change the government through the parliament because they do not have the required votes, they hope that the military or the judiciary may help them to achieve this objective. The lawyer community is more or less divided on the same political lines.

The PPP and its allies criticise judicial activism of the Supreme Court because, they maintain, it invariably targets the federal government. They think that the superior judiciary is stepping out of its official domain and it is undermining the elected civilian government and the parliament.

Independent political observers are perturbed by the confrontation between the federal government backed by the parliament and the judiciary because it undermines both the judiciary and the civilian institutions and processes. As more and more politically loaded issues are taken up by judiciary, it is dragged into political controversies.

The statement of the Chief Justice questioning the supremacy of the elected parliament has alarmed the political circles who see this as an indication of continued judicial pressure on the elected institutions and processes.

Such controversies divert the attention of the government and the opposition from the problems that threaten Pakistan’s state and society. These problems will worsen as the government engages in a desperate struggle for survival. If we examine the issues raised in the courts or by the political parties in their mutual exchanges, these have nothing to do with the problems of the common people and the issues that threaten Pakistani state and society. No one, including the leaders in power, is paying any serious attention to resolving these problems which include the faltering economy, power shortages, poverty and underdevelopment, increased violence in Balochistan and Karachi and religious extremism and terrorism. The total focus is on justifying either the judiciary or the federal government.

The present crisis can go in different directions. If the Supreme Court declares the new contempt of court law totally or partially unconstitutional, it can charge the new prime minister with contempt of court. This will require two-three weeks to complete the contempt proceedings against the prime minister.

If the Supreme Court decides to take direct punitive action against the prime minister, i.e. remove him and put him in prison, it will create a major political crisis. The Supreme Court does not have direct power to remove an elected prime minister. Therefore, it cannot take such an action without the support of the military whose quiet or open support will be needed to take direct action against the elected prime minister.

The PPP is expected to select third prime minister provided its coalition partners stay with it. A new round of controversies can start with the third PPP prime minister. The PPP can continue with this policy until March 2013 when the term of the National Assembly expires. However, given the troubled economy and serious governance issues, the PPP-led government may not survive till March 2013. The political system can collapse altogether because of economic breakdown and increased internal chaos.

The Supreme Court can decide to directly write a letter to the Swiss authorities for reopening the cases against President Asif Ali Zardari. In this case, it should pull back from its tough posture towards the elected civilian government so that the government and the opposition address socio-political issues through mutual interaction and accommodation.

Another option is that the Supreme Court and the army top brass join together to replace the federal and provincial governments with new technocratic governments for a period agreed with the political parties. If the majority of the political parties agree to this proposal, the interim government can be established within the framework of the constitution. If these parties do not agree then the setting up of such a government will require going outside the framework of the constitution which will create a set of new problems without any guarantee that such an arrangement will save Pakistan from internal collapse.

Another option is that the federal government opts for holding new elections by November-December. This will be the most democratic way of dealing with the present crisis. The new government with a fresh mandate will deal with policy matters. The PML(N) and the PPP will have to agree on caretaker arrangements at the federal and provincial levels before Pakistan can go for new general elections.

The political leaders may be corrupt and poor administrators but a democratic political order cannot be run in a diversified society without political leaders and political parties. The military and the judiciary can cause the collapse of political government. However, the problems of complex country like Pakistan cannot be addressed merely through administrative and judicial orders.

The writer is an independent political and defence analyst.