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Pakistan’s clash of institutional authority January 25, 2012

Posted by southasiamasala in : Guest authors, Pakistan , trackback

Guest author: Moeen Cheema, Teaching Fellow, ANU College of Law

This article was first posted in East Asia Forum on 22 January 2012.

Pakistan experienced dramatic political crises in 2011, including the covert raid carried out by the US on 2 May, which killed Osama bin Laden, and the killing of two civilians by CIA contractor Raymond Davis.

It was in these circumstances that an American businessman of Pakistani origin, Mansoor Ijaz, wrote a ‘memorandum’ to the US military commander urging an intervention on behalf of Pakistan’s elected government, which seemed on the verge of being toppled by the country’s historically powerful military establishment. Mr Ijaz, for reasons that are not yet clear, later alleged that this memorandum was written on behalf of Pakistan’s ambassador to the US, Hassain Haqqani, a close aide of President Asif Ali Zardari.

The scandal threatens to sink the fragile government, with the courts — as well as the military — now bearing down on Pakistan’s embattled politicians. The Supreme Court has created a high-powered judicial commission to investigate the origins and veracity of the memo. But the government seems set to fight what it sees as the military establishment, the court and the opposition’s common designs to oust an elected president. There is some basis for such paranoia. Every elected leader in Pakistan’s history has been proclaimed a threat to national security at some stage by the military establishment in an effort to justify greater say in the country’s affairs. Pakistan has undergone three major coups, and the military has ruled the country for nearly half of its post-colonial existence. Even during this latest period of elected rule the military has remained powerful, as the government ceded to it ultimate responsibility for territorial defence, national security and foreign policy.

What is different in this round of tussles between the military and the elected leadership is the role of the superior judiciary. The current Supreme Court is a different constitutional creature from the courts that validated or acquiesced in previous military takeovers. Its Chief Justice was dismissed twice in 2007 by then President and military chief General Pervez Musharraf. On both occasions he was restored to his position, due to a populist movement led by the country’s lawyers, civil society and broad coalitions of opposition political parties. The movement cost President Musharraf his grip on power and paved the way for general elections in early 2008, which brought to power the incumbent government. But this same administration also refused to restore the Chief Justice and nearly 60 other superior court judges who had been unconstitutionally dismissed by the Musharraf regime. The government eventually relented in the face of a ‘Long March’, in which millions demonstrated their support for an independent judiciary in March 2009.

The stance taken by the government’s advocates, who claim the Supreme Court has sided with the military and the opposition, arguably has some justification. But this is also the first instance in the country’s history when serving army and intelligence chiefs, having been made respondents to petitions before the court, have voluntarily submitted responses to the court’s notices. The court has held national security matters to be justiciable before the superior courts, crossing the final frontier of executive prerogative and entering territory forbidden to courts in democratic and authoritarian states alike. This precedent is likely to be as wearisome for the military in the future as it is now for the government.

Current events aside, conflict between the courts and the government has been brewing since the restoration of an independent judiciary in Pakistan. The Supreme Court has taken up several high-profile corruption cases and unveiled irregularities in transactions and appointments. These cases highlight corruption and mismanagement at the highest levels of government. One case in particular has brought the Supreme Court and the presidency into direct conflict and is currently receiving considerable attention, threatening to bring down the Zardari government. The Supreme Court has directed the government to contact prosecution authorities in Switzerland in order to re-initiate corruption and money-laundering cases against President Zardari. The government managed to stall this process for over three years. But it now appears the Supreme Court’s patience has run out and enforcement proceedings are likely to lead to contempt charges and an attritional battle with the government.

What is significant about the memo incident is less that the Supreme Court has decided to side with the military but more that the country’s military establishment appears to have aligned itself with the courts. As Pakistan lurches toward general elections scheduled for early 2013 — and with Zardari facing calls to hold these elections earlier — the current government is coming under increasing pressure from all political quarters, including the courts. But the Supreme Court will do itself and the nation considerable disservice if it is seen to play a direct role in the ouster of President Zardari and his government. It will win itself tremendous credit if it ensures fair elections and adherence to constitutional norms and processes by all, including the military. If it does that, 2012 might become a year of hope — despite the political, economic and foreign policy crises on Pakistan’s horizon.

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