AS the government ducks and weaves and tries to buy time for itself, the ultimate hurdle still looms: the December 2009 order by 17 judges of the Supreme Court for the government to write a letter to the Swiss authorities.
You don’t need to be a lawyer to figure out why this is a near-impossible obstacle for the government to overcome: what bench of judges would now hold that 17 justices erred in ordering the government to write the Swiss letter?
Realistically, whatever defence the government throws at the court, it’s like to be swatted away. So what we’re seeing is an intense battle of wills.
From the ‘six options’ of the NRO-implementation judgment to threatening the prime minister with contempt charges to hauling him before the court, the judges are trying to scare the government into compliance.
The government, by stalling at every turn, is betting the court won’t go for the nuclear option — ousting Zardari or Gilani from office for failure to comply with the court’s orders.
Who will win this battle between institutions depends, like so many other battles in Pakistan, on the philosophies of the individuals involved.
Zardari has showed his hand before, during the Sharif-led ‘long march’: ‘no’ only means ‘no’ until enough pressure is brought to bear to make it ‘yes’.
When it comes to the Swiss letter, Zardari will be weighing the political dividends of defiance against the legal implications of capitulation. He’s got the best lawyers money can buy but does he have the best political advice?
The lawyers seem to suggest that writing the Swiss letter would not automatically translate into a Swiss prosecution and even if it did, so much time has elapsed that the trail may have gone cold.
So far, though, it is the political hawks who appear to have Zardari’s ear. Never mind the legal non-consequences of the Swiss letter, they argue, the court is out to get the president, so why cede to any of its demands?
Zardari’s strategy, then: buy as much time as he can and hope the political climate works to keep the judges at bay. So far it seems to have worked: March will mark the third year since Chief Justice Chaudhry’s reinstatement and thus three years ofcoexistence, however uneasy, between the judiciary and the government.
In the world of Pakistani politics, three years is a lifetime. Zardari and his boys will be slapping each other’s backs andcongratulating themselves on a job well done.
Except, the job isn’t done yet. With the government still clinging to a year-end or new-year electoral time frame, it’s the courtthat has time on its side.
If it does come down to a definitive showdown, an accounting of what went wrong and who did what will be complex andlengthy. But perhaps one factor — miscalculated by the government — will stand out: the judiciary’s vision of itselfpost-restoration.
At its core, the idea that institutions of the state could engage in a high-stakes duel over the Swiss letter is a frivolous one. Yes,the Swiss case is the one instance in which the investigators who have pursued Bhutto and Zardari over the years believe thereis a smoking gun.
However, there’s so much uncertainty about what the Swiss may or may not do were a letter to be dispatched by Pakistan andwhat Swiss law does or doesn’t allow that even in the land of farce that Pakistan often is, this Swiss-letter business seems anunlikely source of high-stakes conflict.
The problem, though, isn’t that Zardari and his PPP chose a political response to a legal problem; the problem is that Zardariand his PPP chose a political response to a legal problem at the wrong moment in judicial history.
Having slain a military ruler, the Supreme Court under Chief Justice Chaudhry has embarked on a transformative agenda.
The judiciary’s critics have wanted a bottom-up approach, a superior judiciary that would lead the way on reforms to improvethe delivery of justice at the lowest rungs of society. But the court’s interest is in a top-down approach: bending the most powerful people in the land to the will of the court to send a message far and wide that Pakistan is at long last a country where the law is obeyed.
Well, the court’s approach is just another form of power politics, the judiciary’s critics argue; there’s nothing in it for the common man.
But the court would argue differently. In fact, when the chief justice could still speak about his judicial philosophy more openly, here’s what he told a gathering at Harvard Law School in November 2008: “In Pakistan, both civilian as well asuniformed autocrats have been influencing judicial decision-making for the past six decades. Just look at what we now have:an inefficient, vulnerable, partial judiciary. And, this inefficient, vulnerable and a partial judiciary has long been keeping Pakistan from realising her full economic growth potential.”
The Chaudhry-led court doesn’t see the Pakistani people’s salvation in micro judicial reforms; it seeks to transform their future — not just economically, as the chief justice mentioned in his HLS speech, but also in terms of the spectrum of rightsthey genuinely possess — by asserting the judiciary’s independence from a powerful state inimical to the people’s interests.
At Harvard, Chief Justice Chaudhry pressed home his point: “Judicial reforms are a high-stakes venture. Every reform undertaking has potential losers and potential gainers. Potential losers, if our judiciary is to become truly independent, include civilian as well as uniformed politicians and our intelligence agencies. Potential gainers: the general population at large and the economy.”
By poking the court in the eye over the Swiss letter, the government has attacked a transformative judiciary’s very perception of itself and undermined its image with the people.
The court’s only likely response? Fiat justitia ruat caelum — let justice be done though the heavens fall.
Zardari may want to raise his eyes to the sky above and ponder his next move.
The writer is a member of staff.
cyril.a@gmail.com