The Fire Escape Chute

How can the court show one prime minister the door and let another off the hook? On the other hand, it also can’t afford to be seen as a pacman eating up PM after PM Of late, keeping an eye on politics in Pakistan, you increasingly end up feeling like you’re living in a house on fire; no fire department to call and no way out while the fire burns the house down with you trapped inside it.
In this executive-judiciary inferno, is there a fire escape chute somewhere that we just haven’t found yet?
The moment it was lights out for former prime minister Gilani, it was immediately clear that a PM by any other name – whether a Raja Rental or a Shahab Ephedrine – would still have to deal with the Supreme Court’s ultimatum of writing that blasted Swiss letter. Similarly, it was also immediately clear that if you took the Gilani route, you’d go the Gilani route, and there was only one place that road led: out of the PM House.
By disqualifying a sitting chief executive, the court of Iftikhar Chaudhry had set a legal precedent where none existed before. No more ifs and buts, no more candy and nuts. New rule: write the letter or getouddahere.
On the face of it, then, it looked like there was no way out of the Swiss cul-de-sac – for either party. Except that it became clear soon enough that losing prime ministers wasn’t something that bothered the PPP, its top boss or even the Band-Aid prime ministers themselves. That is, the only one who seemed to be in this cul-de-sac was the court.
The government, even to its biggest cheerleaders, looks ready for confrontation. Plus, this time round, it’s decided to fight the court in the court. It realises that the NRO petition should have been contested. It realises that it should have been a party to the NRO review. It realises that Aitzaz should have invoked presidential immunity when he had the chance. It realises that it should have filed an appeal against Gilani’s conviction.
This time round, then, apart from its usual tricks, the PPP is also ready for a legal fight.
At heart, the NRO implementation case is not about asking the government to ask the Swiss to reopen a case; it’s about asking the government to inform the Swiss to regard Malik Qayum’s 2008 letter as never having been written. If certain sources are to be believed, the government’s legal arguments in the NRO case will now revolve precisely around the question of establishing the legality and legitimacy of Qayum’s letter and proving, with the help of a law ministry summary and a Sindh High Court judgement, among other documents, that the former attorney general wrote the 2008 letter with the support of all executive authorities at a time when the NRO was a valid law.
Add to this that many Pakistani and most Swiss lawyers agree that at this point, Zardari’s constitutional immunity as head of state and Switzerland’s statute of limitations – under which the president’s case expires this year – combine to ensure that the gesture of writing the letter would be a worthless one. Not to forget the exasperation of the Swiss authorities themselves. “Switzerland is not some yo-yo you can play with,” a former state prosecutor who drew up charges against Zardari in the 1990s was quoted as telling the New York Times. “We spent basically 10 years working with the parties in Pakistan to review everything, and we mightn’t be so hot to do all that work again.”
So there you have it. A potentially meaningless letter that has pushed Pakistan’s judges and leaders into a battle to their deaths. What now?
Both sides either need a strategy to win or a strategy to exit. The PPP’s is clear. But what about the court’s? With the PPP’s limitless reserve of martyrs, this game of Whac-a-PM could go on forever. But how can the court show one prime minister the door and let another off the hook? On the other hand, the judiciary also can’t afford to be seen as a pacman eating up PM after PM.
Is there any way out?
Rewind to January and the ‘six options.’ Options one, two and five (disqualification, conviction and removal) have already been used to send Gilani home, while the PPP decided not to use option four (invoking the immunity clause) despite being given the chance.
Now only two options remain. The third safety option: appointment of a judicial commission to execute the relevant parts of the NRO judgment under Article 187 of the Constitution; and the final political option: letting the people of Pakistan or their representatives in parliament decide.
Which road will the court take? According to some, the court may have to plan a combination that makes sense to both the hawks and the doves in court. That is, given its own decision to sack Gilani, it has no option but to sack Raja also. However, having realised that the PPP is fine with its PMs being shown the door but not wanting to be dumped with the blame of triggering the unintended consequences of what could become an endless cycle, it may just end up finally forming that NRO implementation commission.
Send Raja home and form the commission – is that where all this will end?
Indeed, for a purist court, admitting that it has picked a battle with consequences outside the judicial arena will be a hard choice to make. But it’s the only way out of a fight in which there can be no wholesome victory for either side.
Of course, in light of the destabilising effects of the political soap opera of the last several months, the fact that writing that blasted letter may be an exercise in futility does leave one feeling a little ill. Perhaps the best option then is the court’s own sixth option: let the people get themselves off the hook.
There are, after all, several ways to get rid of a government. Perhaps the court should let the people try the never-been-tried-before way: vote it out – not least to help them better understand the agony that comes of doing stupid things by democratic assent.