A Judicial Coup?

Hello Everyone!

The biggest news recently from Pakistan is the disqualification of Yousuf Raza Gilani as Prime Minister by the Supreme Court. Gilani was disqualified for failing to pursue corruption charges against the President Asif Ali Zardari the co chairman of the Pakistan’s People Party of which Gilani is also a member. Reaction to the verdict was mixed in Pakistan but many Western newspapers towed the Government line of the verdict being a ”Soft Judicial Coup”. This is absolutely untrue and completely obscures the truth of the situation.

Gilani’s dismissal was nothing like a coup and was certainly within the Supreme Court’s power. A little background info is necessary.  In 2007 the then military dictator Pervez Musharraf promulgated the National Reconciliation Ordinance which provided a blanket amnesty for crimes committed by his political allies as well as those committed by leaders of the PPP which Musharraf was trying to enter into an alliance with.  One of the most prominent cases the NRO quashed was a case in Switzerland in which the Chairwoman of the PPP Benazir Bhutto and her husband Asif Ali Zardari  had been convicted of laundering $60 million dollars worth of ill gotten money in Swiss Banks. The Pakistani government wrote to the Swiss Prosecutors asking that the case be withdrawn and it was. Chief Justice Iftikhar Muhammad Chaudhry suspended the NRO in October 2007 while the Supreme Court examined it’s constitutionality.

Events including Musharraf’s second Coup and the house arrest of the CJ and the assassination of Benazir Bhutto lead to the NRO being allowed to stand by Musharraf’s new handpicked SC. Bhutto’s widower Zardari forced Musharraf out of Office and became President himself in August 2008 whilst refusing to restore CJ Iftikhar. This was likely do to Zardari’s fear that Chaudhry would reopen the corruption cases against him.

Although he had never been convicted in Pakistan, Zardari spent years in jail and was known as Mr.10% for the cut of government contracts he took while his wife was PM. Regardless of whether or not the corruption charges were only brought as a means to bring down his wife  most of them were true. Zardari’s family had no assets except a movie theatre in Karachi before he married Benazir; now he has expensive mansions and penthouse suites in Dubai, New York, London, and France, a unknown amount of money in foreign bank accounts and his now infamous $60 million in the Swiss Banks.

The Lawyers long march in March 2009 combined with the people’s uprising in Lahore forced Zardari to restore CJ Iftikhar to avoid a military coup. In late 2009 the SC began re- hearing the NRO case. The Government failed to get the NRO validated by Parliament which likely would have forestalled any attempt by the Supreme Court to strike it down; and the government’s legal defense during the hearings was criticized as ineffective. Unsurprisingly the SC struck down the NRO on December 19th 2009 and ordered the government to restart all cases closed by the ordinance including the Swiss Case against Zardari.

All the closed cases were re-opened except the Swiss Case. The Government claimed the constitution gives immunity to the President; which is true and is likely why Zardari decided to become President rather than Prime Minister. However the Government never argued the immunity defense in court and the Supreme Court continually demanded that the Swiss Case be re-opened. The Government of PM Gilani stalled on re-opening the case and the SC unwilling to cause a major confrontation allowed the Government to string out the case in Court.

Finally in December of 2011 two years after the NRO judgement the SC gave a final deadline to Gilani of January 10th 2012 to re-open the Swiss case. Gilani refused and on January 16th 2012 he was charged with contempt of Court. The Court have numerous chances to Gilani to re-open the case during his trial and allowed his lawyer to string out the proceedings. On April 26th 2012 the SC convicted Gilani of contempt of court and sentenced him to a symbolic 30 second imprisonment in the Courtroom while also ordering the speaker of the national assembly to forward Gilani’s disqualification case to the Election Commission.

On May 28th 2012 the Speaker (also a member of the PPP) declared that in her view Gilani was not disqualified therefore there was no need to forward the case to the Election Commission. The Speaker’s ruling was appealed and on June 19th 2012 the SC ruled that that the inital verdict had in fact disqualified Gilani as PM and National Assembly member and that he had ceased to hold office from April 26th 2012.

There are several myths surrounding the case that I’d like to dispel. First this in no way was a judicial coup. The Supreme Court is allowed to disqualify politicians who bring the court into ridicule, an article of the constitution which the government could have changed at any point in the past 4 years. This power is in no way unprecedented; in the 1990’s the President had the power to dismiss the Prime Minister and the National Assembly whenever he wanted until the Supreme Court ruled that it would have the power to review the President’s decision. Which it did twice, once ruling to restore the Nawaz Sharif government and once ruling to dissolve the Benazir Bhutto government. Also the SC has always validated military coups in which the national and provincial governments are sent packing until 2007 when the SC refused to validate Musharraf’s second coup.

It is also false to claim that the SC’s decision is a blow to Parliaments power. The National assembly has never held any real power in Pakistan instead it has acted as a rubber stamp to whichever PM, President, or Army General who happens to be in power and the current assembly is no different. Gilani may have been the legal head of government but he only acted on Zardari’s orders as would any PM belonging to the PPP. The Speaker had no right to decide whether or not Gilani would be disqualified; a smarter strategy would have been for her to delay sending the case to the election commission for as long as possible, then the Election Commission could also have delayed making a ruling until it was almost time for elections.

Many PPP leaders told foreign newspapers that the SC only acted to disqualify Gilani after corruption allegations surfaced in June against the Chief Justice’s son. This is a ridiculous assertion. It is true that a prominent real estate mogul with close connections to the Military and various Political parties told the media that he had given the CJ’s son over $3 million in bribes over the past several years in an attempt to get court cases against him decided in his favour. The Mogul himself admitted that none of those cases were decided in his favour and that the CJ had no knowledge of his son’s shady dealings. CJ Iftikhar himself ordered the government to fully investigate his son and if he is guilty of wrongdoing charge him. Many people in Pakistan believe that the whole case was orchestrated by either the Military or the Government to bring down the Chief Justice; a suspicion furthered when leaked footage surfaced of the Real Estate Mogul telling journalists of a private TV channel close to the Government what questions to ask him while fielding a phone call from one of Gilani’s son who is wanted for corruption charges. To suggest that the SC decided to remove Gilani from power simply to temporarily deflect attention from the case against the CJ’s son is absolutely ridiculous.

It is also absurd to accuse the SC of dismissing Gilani on the orders or with the connivance, of the Army. CJ Chaudhry was deposed twice by the Army precisely because he was challenging the Army’s unfettered power. On November 3rd 2007 when Musharraf launched his second coup and deposed CJ Chaudhry again, it was the Army that stormed the Supreme Court and arrested the Judges and took them away to house arrest where they were kept for over 4 months.  It is true that the Judiciary has traditionally been under the Military’s thumb but all that changed in 2007 and the Judiciary has made clear again and again that it will never again validate a military coup. Add to this the Judicary’s dogged pursuit of people abducted and often murdered by the Army or it’s inteligence agencies and it’s reopening of an old case detailing the Army’s meddling in the 1990 election as well as allegations of the Military playing a role in the charges against the CJ’s son and it becomes clear that the Judiciary and the Army have parted ways and are not acting in cahoots.

That being said there is likely some truth to the allegation that the Supreme Court is pursuing the Swiss Case as a way to force Zardari from office. The Judiciary as a whole as traditionally been a conservative institution that has been at odds with the (officially) left of centre PPP; although the Supreme Court has moved in an more progressive direction since 2007. No doubt many if not most judges view Zardari as irredeemably corrupt and unsuitable for office (which is not an unreasonable assessment) and they view the Swiss Cases in which he was convicted and which has clear evidence of $60 million unexplained dollars as the best way to remove Zardari. And of course as I shall discuss in later posts Zardari promised thrice to restore Iftikhar Muhammad Chaudhry and thrice went back on his word, all the while he attempted to divide the judges who supported Chaudhry and used the Dogar Court (headed by the unconstitutional CJ Dogar) to quash corruption cases against himself, let the NRO stand, and destroy his political opponents the Sharifs; which is what ultimately lead to the mass protests that forced Zardari to restore the Chaudhry court. Judges are supposed to be unbiased but they are only human and it is understandable why they would loath the man who would have kept them out of office if he could have.

That being said the Government does have a strong point when it says that Zardari has immunity as President, at the same time it seems that even if the Government asked the Swiss to re-open the cases they would most likely not as the statute of limitations has expired. Certainly the government consistently bungled it’s legal defense and Zardari’s almost successful attempt to forever depose Chaudhry and his fellow Judges has left them with a deep loathing of Zardari as President and as a man. The fact is that the only major ramifications of this judgement is that it makes it nearly impossible for Zardari to continue as President once he is up for re-election in August 2013. With the threat of Court action against him I would bet that Zardari leaves Pakistan for Dubai shortly before his term and by extension his immunity ends, never to return to Pakistan. If he gambles on trying for a second term and fails he will most likely end up spending the rest of his life in Prison. Perhaps the ultimate goal of the Supreme Court’s pursuit of the Swiss Case has been to achieve just such an outcome.

I will leave you now with some links to articles that I think give a fair and balanced view of the situation. This is a well written Globe and Mail article that gives an unbiased assesment of Gilani’s ouster: http://www.theglobeandmail.com/news/world/messy-democracy-loses-a-pakistan-prime-minister/article4359003/

This is an article in a major Pakistani Newspaper, The News International by a British expat who has lived in Pakistan since 1994 giving his view of the situation: http://www.thenews.com.pk/Todays-News-9-116568-An-uneasy-head

This is an article featured in Pakistan’s other major English language newspaper, Dawn (founded by none other than Muhammad Ali Jinnah) discussing the difference between what the SC did and an actual coup: http://dawn.com/2012/07/02/the-strongest-institution/

Finally this is an article from the News International comparing the criticism  U.S. CJ Roberts has received for upholding President Obama’s healthcare law and the criticism directed against CJ Chaudhry for his bold decisions: http://www.thenews.com.pk/Todays-News-13-15767-Pak-US-CJs-under-attack-for-upholding-rule-of-law

Cyrus Durant.

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About cyrusdurant

I'm just a man (or woman, I'll never tell) with a strange obsession for Pakistan. I also like to pretend that my opinions on things matter. I hope you will stay with me on this journey to whatever the future holds.
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4 Responses to A Judicial Coup?

  1. Mieszaniec says:

    Interesting. Thanks for the good read. Keep it up!

  2. Aved Pakistan Coup enthusiast says:

    I’ve read a lot of blogs about coups in Pakistan, but this one is my 2nd favourite!

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