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To write or not to write

September 02, 2012

HERE’S an idea for that cussed letter to Switzerland:

Dear Switzerland,

We liked you better when you were best known here for your watches, chocolate and those gadget-cum-knives that look more useful than they are.

Please stop screwing up our fragile experiment with democracy.

In return, whatever Pakistani money you can find in your banks, keep it. It’s not like we were going to see much of it anyway.

Sincerely, Pakistan.

You get the feeling that if Justice Asif Khosa were given that draft, he’d take it.

Theories abound at the moment. So here’s mine.

There will be no letter written. Raja Rental will go home. If Raja goes home before Zardari is ready to call an election, a new prime minister will be sworn in. If not, we’ll go into an interim set-up and Zardari wouldn’t mind if the court forced the caretaker prime minister to write the letter the PPP wouldn’t.

So what is Farooq Naek up to then?

A few months ago, the law minister was unceremoniously chucked out of the Senate chairmanship and demoted to law minister. Most would be chastened by that experience. But here is Naek working to find a middle ground between a court that won’t back off and a president who won’t give in.

Were something to go wrong, Naek would be the fall guy and for all his closeness to Zardari, a second perceived transgression in quick order could leave him out in a Siachen-like cold. Few politicians would take such a risk. So what is Naek up to?

Here’s my theory: Naek is giving Justice Khosa what he needs.

Justice Khosa is in a bind. A judge whose career will extend far beyond the chief justice’s, Justice Khosa doesn’t want the dismissal of an elected prime minister on his record.

But until December 2013, it’s the Court of Chaudhry. The PPP has defied the court on the Swiss letter and the Court of Chaudhry has decided it will not accept the PPP’s defiance. So Justice Khosa has his work cut out for him.

The last time, a Khosa-led bench convicted Gilani for contempt but left open the question of disqualification. But then the CJ knocked out Gilani when the speaker’s ruling rejecting the question of disqualification was challenged in court.

So now it’s virtually impossible for Justice Khosa to go only as far as convicting a PM for contempt. For were he to leave open the question of disqualification again, it would open the floodgates to speculation about divisions in the court.

Which leaves the future Chief Justice Khosa desperate for some way, any way, to buy himself some time and avoid the stain of ousting a prime minister.

Enter Naek. The law minister is a quiet operator; not for him are the theatrics of a Babar Awan or the public partisanship of an Aitzaz Ahsan.

The letter holds no legal threat to Zardari, this much the court and the PPP know.

It’s fundamentally a political matter: the court either wanting to humiliate Zardari by having his own government write a letter implying he is corrupt or, having backed itself into a corner, having no other option but to insist the letter be written.

Therein lies Naek’s opportunity.

A determined, and selectively public, effort by Naek to convince the president of the harmlessness of the Swiss letter gives Justice Khosa a legitimate reason to give the PPP more time.

After all, Zardari can’t relent overnight. He’d have to distance himself from the refusal to allow a trial of BB’s grave and be given time for the sting of one prime minister ousted to subside.

So Naek is signalling two things to the court: one, a certain kind of letter can be drafted that could be palatable to Zardari and the PPP; and two, it will take time to convince the president and the PPP hawks of the palatability of any kind of letter written at this stage.

Either way, Naek wins. If an anodyne is written, Naek is the hero who managed to forge a compromise where no one else could. If the letter isn’t written, the mere appearance of working towards a compromise has bought Raja time few thought possible in June.

Already Raja has had from July 12 — when the court asked the new PM to explain his position on the letter — till Sept 18. And already we know the worst that can happen on Sept 18 is that Raja can be charged with contempt — meaning at least several more weeks of the same game between a reluctant cat and a recalcitrant mouse.

Which brings us back to square one: will Zardari let the letter be written?

The Naek gambit has let the cat out of the bag: there is no legal liability at stake for the president. That a certain draft would have dangerous repercussions for Zardari and another kind wouldn’t is legal voodoo.

There is only a political calculation at work here. Going into an election after a disastrous term in charge, realistically all the PPP has is the emotional card: one prime minister hanged, a second assassinated, a third ousted.

A fourth ouster only strengthens the emotional appeal of political sacrifice by the PPP.

So why write the letter to be rid of a judicial headache when the perpetuation of that headache is a political boon?

There will be no letter written.

But what if the interim prime minister did? In a stroke, the PPP would become an opposition party during the election campaign.

There will be no letter written. Not by the PPP.

The writer is a member of staff.

cyril.a@gmail.com

Twitter: @cyalm