Tehelka story last week: Government in final round of survival game: It’s do or die

Either the government will withstand the pressure from the unelected arms of the state or will cave in, says Raza Rumi

Pakistan’s beleaguered civilian government has entered into the final round of its survival game. This is not a new ‘game’ as the transition to democracy has been jeopardised from the very start. In 2007, the military junta started the process of negotiating with the Pakistan People’s Party (PPP) and the then Army chief, General Pervez Musharraf, and his trusted associate General Ashfaq Parvez Kayani shaped a power-sharing arrangement with late Prime Minister Benazir Bhutto. The ‘arrangement’ was formalised in the shape of a law—National Reconciliation Ordinance (NRO)—which inter alia intended to drop dozens of cases against PPP’s leadership and politicians. It should be noted that many of these cases were pending in courts for over a decade and due to lack of evidence or faulty prosecution, there were no convictions.

Politicians in Pakistan have faced ‘corruption’ charges since 1950s largely as an instrument to keep them in line and expand the space for the unelected executive i.e. the civil-military bureaucracy, which has ruled Pakistan for the longest period of time in its chequered history. The judiciary historically acted as a subordinate ally of the executive legitimising coups, convicting and debarring politicians and enabling a praetorian state to run the country.

Since 2007, the judiciary has evolved as a powerful institution due to the popular middle-class movement which contributed to the restoration of the deposed Judges and paved the way for Musharraf’s ouster in 2009. The period between 2007 and 2009 was when the urban middle class’ (led by the lawyers) aspirations for rule of law converged with the struggles of large political parties such as the PPP and Nawaz Sharif’s Muslim league. The PPP represents the interests of the rural areas in the Sindh and Punjab provinces while the Sharif’s key constituency is urban Punjab, which comprises most populous and affluent districts of Pakistan. A permanent shift in Pakistan’s power structure has taken place with the judiciary and the newly ‘independent’ media, especially the 24/7 TV channels controlled by business oligarchs, encroaching chunks of space traditionally held by the all-powerful unelected executive.

The NRO of 2007, due to its specific advantage to the PPP, became a rallying point for the Opposition; and the judiciary, media and civil society for varying reasons opposed it. The PPP’s victory in 2008 election therefore placed it in a difficult situation: it was suspicious of the convergence between the judiciary and its rival political party, PMLN. It took nearly a year of tumultuous events—political instability, high-handed tactics to weaken Sharif, long marches, intervention of the army chief and reportedly the US as well—to restore Judges deposed by Musharraf. The PPP government and the empowered Judges (with political support and media clout) found themselves locked in a struggle from the very start. Having said that, it will be wrong to attribute political motives to the Judges except that their assertion of authority and independence is a new phenomenon in Pakistan which even the Judges are struggling to negotiate. And equilibrium between judicial activism and restraint is yet to be reached.

In December 2009, the Supreme Court declared the NRO null and void and directed the government to reopen all closed cases. While the government partially implemented the order, it remained adamant to reopen the case pending in Swiss courts against President Asif Ali Zardari. The government had a solid legal argument as the President enjoys full immunity under the Constitution. However, given the PPP’s turbulent history with courts (the Supreme Court ordered the hanging of its founder Bhutto and upheld the unfair dismissals of two Benazir Bhutto governments in the 1990s) it also politicised the verdict to appeal to its core constituency in Sindh province reliving the saga of a ‘Punjabi’ Court pitted against a Sindhi Zardari not unlike the situation in the past. PPP’s support base also includes hundreds of thousands across the country who view it as a party of martyrs and victims.

Another year was bargained by the government to implement the orders in a piecemeal fashion. The court was patient and after two years, in January 2012, it expressed severe displeasure and cited six options that were available to the Judges. Five of these options mentioned punitive actions that could be taken against the political executive and various agencies while the sixth was a rather ambiguous suggestion of recourse to the people broadly interpreted as a fresh election.

The year 2011 was turbulent for Pakistan as it witnessed high-profile assassinations of liberal public officials like Salmaan Taseer and the Minister for Minorities, and a gradual near-breakdown of US-Pakistan relations. The 2 May strike on Osama bin Laden’s hideout was a major blow to the country’s image, in particular the credibility of its army-intelligence complex, which faced major embarrassment by the discovery of Laden in a garrison town. Rejecting the civilian consensus to hold the military accountable, the elected government stood by the Army and protected it. The subsequent attack on a key naval base (on 26 May)—reportedly an inside-job—was also overlooked by the government.

However, government-military relations were severely impacted by the discovery of an unsigned memo which was allegedly written by the civilian government to the US seeking its help to correct the civil-military imbalance in the aftermath of the 2 May strike. Since October 2011, relations have been extremely tense and by the end of last year, a petition had been filed at the Supreme Court to investigate the issue; and the court decreed against the government view that a parliamentary commission was the best forum to inquire into this issue. The media also started a chorus of treason against the civilian government. It should be remembered that in Pakistan’s history, civilian leaders have also been branded as ‘traitors’ and ‘anti-state’ (like the colonial era) for their independent line on security and foreign policies.

The year 2011 will also be remembered for the meteoric rise of the cricketer-charity worker-turned politician Imran Khan. His appeal to the younger segment of Pakistani population places him in a favourable position to make considerable gains in the next elections. But his critics also see him as a new ‘horse’ for the military establishment given his acceptance of army’s worldview on the US, Taliban and guarding Pakistan’s ‘strategic’ stakes in Afghanistan.

Since 2008, Gilani has been termed an incompetent and corrupt politician. However, he has put up a savvy show of defiance against the military in recent weeks. In December, Gilani spoke on the floor of Parliament and declared that a ‘state within a state’ would not be tolerated. He also termed the act of the military and ISI chiefs sending direct affidavits to the SC as bypassing of law and rules in the memo case. In a dramatic move, Gilani fired the Defence Secretary, known to be close to Kayani, on 11 January. Had this been done by a PM in 1990s, the army would have intervened. Gilani’s posturing has altered his stature in the eyes of the public. More importantly, PPP supporters find another ‘victim’ standing up to the power-centre. The army had earlier denounced Gilani’s views by saying how PM’s remarks could entail “grievous consequences for the country”. Gilani reportedly has refused to withdraw his various statements.

A close observer of Pakistani politics, Sadanand Dhume says, “Regardless of how one views the PPP, Gilani’s boldness and eloquence mark an important milestone in the evolution of a democratic culture in Pakistan.” Echoing the thoughts of many Pakistani commentators, Dhume adds, “Things are moving in a positive direction if a civilian leader widely regarded as weak can publicly stand up to the army in the name of people’s mandate.”

However, these developments have been called a ‘coup’ by another name in courts. Many commentators have cited ‘judicial’, ‘slow-motion’ or ‘soft’ coup taking place since the memo affair started last year. The real threat of a judicial coup has arisen with the notice issued by the Supreme Court to summon the Prime Minister to explain why he should not be charged with contempt of court.

Well-known analyst Ahmad Rashid (Financial Times, 17 January) is of the view that this judgment could lead to the dismissal of Gilani and eventually President Zardari as the army appears to be giving full backing to the courts. This three-pronged power struggle between the government, military and judiciary is unfolding. Earlier, Human Rights Watch had also expressed concern on “judicial overreach and unwarranted intrusion into the affairs of the legislature and the executive”. Its Pakistan Director Ali Dayan in an interview to this writer had noted how the memo affair was a “litmus test for all actors—particularly the judiciary and the army—and whether the rule of law or the law of the jungle” would prevail.

Gilani has surprised his detractors once again by promising to obey the judicial order. “I will personally appear before the courts,” he told Parliament on 17 January. “They called me on the 19th, and I am going to show up. Can there be any greater respect than this?” If convicted, Gilani could serve jail time, lose his seat in Parliament and get disqualified from holding office.

The same day when the Supreme Court summoned Gilani, Parliament passed a vote-of-confidence in favour of the government. As famous columnist Kamran Shafi said, “Gilani has grown in office because he has the President’s firm support and has acted so bravely in front of the bullies,” implying what Shafi calls the “Deep State”. Gilani has appointed Aitzaz Ahsan as his lawyer, a senior leader of the PPP who is well respected by the judiciary for his role in pressuring the government to reinstate the deposed Judges in 2009.

It remains to be seen if the civilian government will withstand the pressure from the unelected arms of the state, or will cave in before Senate elections scheduled for March 2012. The game is set. If the PPP loses, it will be viewed as a martyr by its supporters; and if it wins this round, Pakistan’s democratic future will find a new trajectory.