Gilani’s Conviction: A Soft Constitutional Coup and The Crisis of State

Sushant Sareen

Even before the Supreme Court of Pakistan had pronounced the verdict against Prime Minister Yusuf Raza Gilani, the writing on the wall was very clear: the so-called ‘independent’ judiciary was hell bent on gaining the dubious distinction of breaking new constitutional ground by convicting a sitting Prime Minister on the charge of contempt of court, which is really short-hand for a soft constitutional coup. Anyone who has followed the proceedings in the said case knew that the judges had decided to convict Prime Minister Gilani even before the case started.

Only, they had to go through the motions – lawyers call it due process – to keep up the charade of being even-handed so that the charge of one-sided justice and witch-hunt against the Pakistan People’s Party (PPP) could be watered down.

On the face of it, sentencing of the Prime Minister till ‘the rising of the court’ i.e. about 30 seconds, appeared to be a bit of an anti-climax because it belied expectations of a spectacle – the PM being taken to jail and/or the court disqualifying him as a Member of Parliament. But even this half-a-minute sentence was enough to do the damage and create an unprecedented constitutional and political crisis which the country can ill-afford at this juncture. With the conviction of a sitting Prime Minister, Pakistan has entered uncharted constitutional waters that hold the potential of sinking the ship of state. As things stand, the Pakistani judiciary has breached the limitations implicit in the constitution – the most appropriate term is the Hindi word ‘maryada’ – and created a situation which the framers of the constitution would have neither imagined, nor catered for.

If the reactions to the conviction are anything to go by, the portents are not good. The ruling PPP and at least some of its allies are gearing up for a bruising legal and political battle aimed at not only protecting the PM but also making hell of a noise to undermine the judges and their judgments. Prime Minister Gilani has already called the ruling ‘not appropriate’ and is showing no signs of putting in his papers. The leader of the main opposition party, Nawaz Sharif, has sounded the bugle by declaring that he and his party no longer acknowledge Gilani as the Prime Minister and has demanded his resignation and early general elections. The right-wing religious parties like Jamaat Islami and neo-Jamaat/Talibanesque parties like Imran Khan’s Tehrik-e-Insaaf have cast their lot with the judiciary and are going hammer and tongs at the Zardari-Gilani combine. In short, the stage is all set for political pandemonium, in the corridors of power, chambers of courts, the streets of the country, and of course, the ubiquitous TV studios. The powerful military establishment is meanwhile watching everything from the sidelines, biding its time but also calculating whether or not it will be required to step into the political slugfest.

The judgment against Gilani has not only sharpened the political polarization in the country but has also politicised the judicial processes. Sample this: on the eve of the judgment those supporting Gilani made it clear that the ruling would decide whether justice would be done (i.e. Gilani would be acquitted) or the PPP would once again be victimised; those baying for Gilani’s blood (actually, the real target is Asif Zardari) were waiting to see if rule of law would be upheld (i.e. Gilani would be sentenced) or if the judges would once again buckle under pressure! In such a deeply polarized environment, it is impossible to expect that judicial verdicts will be accepted ungrudgingly by either side.

In other words, every judicial decision in Pakistan today is something of a political minefield. To a great extent, it is the judges themselves who are responsible for the situation coming to such a pass. Right from the time this government took office in March 2008, the judiciary has been a mill-stone around its neck. The reluctance of Asif Zardari to restore the chief justice was only partly the result of his own personal grudge against Justice Iftikhar Chaudhry – he had humiliated Zardari and consistently denied him any relief during the Musharraf years. Partly, Zardari resisted the restoration because the suspended chief justice spooked the army which leaned on the PPP government to avoid restoring him. But after having been forced to restore the Chief Justice, it would have been ideal if all sides had decided to let bygones be bygones and started with a clean slate. After all, there was no one in Pakistan – not the judges, not the politicians, not the faujis, not the media mujahids and jihadis, no one really – who was not sullied.

While the sins of all others seemed to have been wiped clean, Asif Zardari remained a pet object of hate for the right-wing, Punjabi mafia that runs Pakistan which wanted to punish him for all his sins (more of commission than of omission) despite the fact that he had been jailed for over 11 years without having ever been convicted. Despite Zardari having become President and enjoying complete immunity under the constitution against any prosecution, the judges did not relent in trying to fix him. If only the judges, most of them with an Islamist proclivity – a favourite judge of the chief justice is now the chief legal counsel of the assassin on the former Punjab governor and the chief justice himself has made observations against secularism – had shown the same dogged determination against terrorists like Hafiz Saeed and others of his ilk as they have shown against Asif Zardari and Yusuf Raza Gilani, Pakistan might well have been a happier place.

Forget about Islamist terrorists, these very same judges are very careful when it comes to throwing the book either at the generals or even their favoured politicians like Nawaz Sharif. The zealousness with which Gilani has been convicted is somehow completely absent when it comes to convicting top army generals and ISI officials for flouting court orders (for instance in the missing persons case). Gilani’s supporters also point out how the Supreme Court judges have acted against fellow judges for ignoring an order declaring the emergency imposed by Gen Pervez Musharraf in November 2007 but have refused to act against the officials (including the current army chief) who had also ignored the very same order. Even in the cases involving politicians of a certain persuasion, the judges seem to be very guarded in their approach. For instance, while the chief justice showed remarkable alacrity in taking suo moto notice against an actress who was caught with two bottles of liquor, the somnolence of the judiciary knows no bounds when it comes to a murder case against the former chief minister of Punjab, Dost Khosa, who was a stand-in for Shahbaz Sharif for a few months and is the son of a close associate of the Sharifs and who is believed to have killed his wife.

It is against such a backdrop that the judiciary is being judged by supporters of the PPP who also question the constitutionality of the judgment not just because the constitution provides immunity to the Prime Minister under article 248(1) for any action he takes (or as in this case, doesn’t take) in the discharge of his responsibilities but also because according to the Attorney General of Pakistan there is currently no law on contempt of court and the ordinance under which that the Supreme Court is prosecuting the Prime Minister had lapsed as a result of the judgment of this very Court. The game-plan of the PPP is going to be two-fold. At the political level, there is a slim possibility that the party decides to ask Yusuf Raza Gilani to resign and selects his replacement in the next couple of days, in which case the crisis over a convicted PM will be resolved but the issue of the controversial letter will remain open. Alternatively, and perhaps more likely is the possibility that the PPP will ask Gilani to continue in office and at the same time will use this conviction to play the victim and use the ‘political martyrdom’ card to try and cement its core support base in South Punjab and Sindh. The only problem is that given the rather poor performance of the government, it is unlikely if this ploy will find too much traction. Although the PPP might win sympathy from some quarters, whether it will also receive the votes, especially in the next general elections, cannot be said with any degree of certainty. At best what the PPP can hope for is that the political martyrdom at the hands of a vindictive judiciary might help it to reclaim lost ground after the next elections.

On the legal plane, chances are that the PPP will use every trick in the book to drag the matter and prevent the disqualification of the PM. But how long they can drag this case is again a matter of speculation: the PPP supporters believe that they can pull this thing for around four to six months and then if matters reach a head elect another PM and repeat the whole drama all over again; the PPP detractors are of the view that at best the ruling party can drag this for a two to three months after which it will have to choose another PM. As the latter see it, the appeal against the conviction could be set aside in a matter of weeks after which the disqualification reference will be moved before the Speaker who has to decide on the matter within 30 days. After this period, the case will automatically go before the Election Commission which is currently headed by a serving Supreme Court judge in a temporary capacity. He is unlikely to take too much time before disqualifying Gilani. This ruling will then be challenged before the High Court and then appealed before the Supreme Court. Given the mood of the Supreme Court, the odds are that this entire process could be decided without too much delay.

While the legal processes will follow their own course, the issue of writing the controversial letter to the Swiss authorities to reopen the cases against Asif Zardari will continue to hang like a sword over the head of the government. If the government continues to defy the Supreme Court, there is a possibility that the court might ask the army to intervene. This would pretty much mean an end of the democratic order for the foreseeable future. If however the army refuses to follow the ‘illegal’ orders of the Supreme Court, then the Court will become a lame-duck. There is a possibility that the Court might not push very hard on the letter issue and wait for the next government (likely in March 2013) to write the letter against the President whose term expires in August 2013. But even before this happens, a caretaker government is likely to be in place by around November/December this year and this government could also write the controversial letter. In other words, the letter will ultimately be written and written even while Zardari is in office. Therefore, the question is what the PPP and Zardari hope to gain by holding out on the letter for another few months.

There is of course another possibility: the government might plead immunity for the president, something that the Supreme Court has already asked it to do. This is however a risky strategy because if the immunity plea is rejected then the government will have to write the letter. On the other hand, if the court accepts the immunity plea, then questions will be raised and fingers will be pointed against the judiciary for creating such a massive constitutional and political crisis for the last two and half years even though it was clearly laid down in the constitution that the President enjoyed immunity. After all, if the case against Zardari hasn’t been decided in the last 16 years, heavens would not fall if it continues to remain undecided for another year or so.

The big problem for the Pakistani state is that all this political and constitutional tumult is taking place at a time of monumental, even existential, challenges and threats. The economy is on the verge of collapse and requires some very tough decisions if it has to survive; at the strategic level, relations with the US and the West are very precariously placed and need bold decisions from the government; the situation in Afghanistan is threatening to go out of control and the Taliban, both the Afghan and Pakistani, could wreck havoc in the region; the internal security situation is abysmal with an insurgency in Balochistan and deep disaffection in Sindh (exacerbated by the alleged murder of the Sindhi nationalist leader Bashir Qureshi), rising sectarian violence and what have you. The spectre of serious instability that was already hanging over the country has only become more ominous after the Supreme Court judgment and cemented the impression of the state sliding towards failure because how can a government that is only engaged in unending fire-fighting to survive and is being constantly hauled over the coals, provide even a modicum of governance. Ultimately, in the name of rule of law the Pakistani judiciary has ensured that there is neither any law nor any rule in Pakistan.

Author is Senior Fellow at Vivekananda International Foundation