COMMENTARY
 
Pakistan’s Executive-Judiciary Tussle
Weekly Pulse
September 7-13, 2007
The government’s decision to forcibly send former premier Nawaz Sharif into Saudi exile has all the hallmarks of a severe confrontation between the Executive and the Judiciary in the coming days, which may result in the imposition of an Emergency Rule or declaration of Martial Law in the country.

Mr Sharif’s decision to return to Pakistan took place in the backdrop of last month’s verdict of the Supreme Court allowing the return of the Sharif brothers to country. The country’s legal community seems to consent that by “deporting” the former prime minister, the government has violated the Supreme Court verdict in “letter and spirit.”

This is because the said verdict had invoked the constitutional clause pertaining to fundamental rights of Nawaz Sharif and Shahbaz Sharif to not only return but to “remain” in Pakistan. It is this broader aspect of the said verdict that has to be kept in mind in predicting the likely outcome of the impending Executive-Judiciary showdown.

Earlier this week, when the four-hour saga of Mr Sharif’s arrival and departure at the Islamabad Airport was unfolding, an informal petition on the forced abduction of the former premier was filed by PML-N leader Khawaja Asif in the Supreme Court. Later, a formal and more elaborate petition was filed in the country’s highest court holding Prime Minister Shaukat Aziz, Chief Minister Punjab Chaudhry Pervez Elahi and scores of other government officials in Contempt of Court and accusing them of kidnapping Mr Sharif and sending him into political exile against his will. The same day, Lord Nazir Ahmad, member of the British House of Lords, filed an additional affidavit regarding the forced exile of the PML-N leader in the Supreme Court.

A number of other petitions, including the one by Jamaat-e-Islami leader Qazi Hussain Ahmad, another by Tehrik-e-Insaf leader Imran Khan and yet another review petition by the Chairman of Pakistan Lawyers Forum A K Dogar dealing with re-election of President Gen Pervez Musharraf are already being heard by the Supreme Court. These petitions seek the Supreme Court to legally interpret whether President Musharraf can continue to keep the position of the army chief, even after his age limit of 60 years for government service had expired in 2003, and whether the two-year bar on a government servant to hold a political office after retirement is applicable in President Musharraf’s case if he chooses to retire as army chief.

Government’s Defiance

It seems that when the government chose to defy the Supreme Court by forcibly exiling Mr Sharif again to Saudi Arabia, it might have contemplated legal consequences of such a clear defiance of the Court’s verdict on its part. The Supreme Court may have taken a suo moto action of the events at the Islamabad Airport or issued a Court Order in response to Khawaja Asif’s application regarding forced abduction of Mr Sharif well in advance of his forced exile, but it chose not to do so. Events unfolded so fast and so secretly, leaving no option for the higher judiciary to take any action at a time when its own verdict regarding Sharif’s return was being violated in letter and spirit.

But if the Supreme Court has not reacted so far to the government’s defiance of its said verdict, it may in the days to come. Both the petition and the affidavit consider forced exile of the former premier as an extraordinary and serious Contempt of Court, and the contents of the petition regard abduction and kidnapping of Mr Sharif equal to a criminal offense.

If the Court decided in favour of the petitioner, then the only way the indictment of the accused can be waived is if the President decides to use his powers to condone the punishments ordered by the Supreme Court. If the Executive, in its ongoing confrontation with the judiciary, has contemplated such a consequence of the Sharif case from the Supreme Court, then the President’s decision to condone those held in contempt by the Supreme Court remains the only option that the Executive can exercise in further defiance of the judiciary.

Of greater political consequence, however, are petitions regarding re-election of President Musharraf, which seems to be emerging as a central issue in the growing Executive-Judiciary confrontation in the country. The issues raised in petitions pertaining to re-election of President Musharraf are essentially of legal nature, but they involve high politics.

Pakistan seems to be faced with a situation where the Judiciary cannot dissociate itself from politics, and the Executive has chosen to defy the Judiciary. The government’s decision to “deport” Mr Sharif was not the only instance of judicial defiance on its part; the same day, hundreds of zealots of its allied party in Karachi, the Muttahida Qaumi Movement (MQM), terrorized the Sindh High Court to such an extent that it had to postpone the hearing of the case on May 12 events of MQM militancy in Karachi. A known lawyer of the Sindh High Court was also assassinated the same day.

Judicial Crisis

Insofar as the mood of the judges at the Supreme Court is concerned, they have issued one decision after another taking the government to task. First instance was the restoration of Chief Justice Iftikhar Chaudhry in July through a near-unanimous verdict of the Supreme Court panel of judges. Then, after resuming his position, Chief Justice Chaudhry ordered the release from prison of PML-N leader Javed Hashmi.

The Chief Justice also took up the case of ‘Missing Persons’, which was one of the reasons why he was made “dysfunctional” by the government in March, as is generally believed. It was due to Chief Justice’s proactive interest in the Missing Persons case that a number of the illegally confined people were finally freed. The case is still being heard by the Supreme Court and, in each of its hearing, the Attorney General and officials of the Interior Ministry are pressed hard to produce all the Missing Persons listed in the petition concerned.

It was, however, the Supreme Court’s decision regarding Sharif’s return that posed a principal political challenge to the Executive. That the Executive has decided to defy this order means the ball, in terms of its months-long, consistently growing confrontation with the Judiciary, is now in the court of the Judiciary.

As stated before, it is not the Supreme Court’s verdict on the Contempt of Court that may potentially trigger the final showdown between the Judiciary and the Executive, but what the Supreme Court decides on the petitions concerning re-election of President Musharraf. If the decision is to disqualify him from re-election, then the Executive may also have decided what it will do in such an eventuality.

Emergency Rule

The option of imposing an Emergency Rule in the country has already been on the government’s table. However, even the exercise of that option can be countered by the Supreme Court. That leaves the last option, which is that of imposing Martial Law in the country. In that case, the only thing that the country’s military ruler would do is to issue another Provisional Constitutional Order—like the one General Musharraf had issued after the 1999 coup on which Chief Justice Chaudhry had also put his signatures—and get it signed by a group of pliable judges of the highest court.

For now, however, this tale about the coming Executive-Judiciary confrontation is full of “ifs and buts”. And even the military leadership’s decision to declare Martial Law involves similar uncertainty at this stage. Can Pakistan afford a Martial Law at this stage, even if it remains the last resort to end the political turmoil that results from growing Executive-Judiciary confrontation in the coming days?

There are not only domestic political problems in the exercise of this last option by the present military-led political dispensation of the country, but also a number of external constraints that may likely come in its way. Even if the so-called deal between General Musharraf and PPP leader Benazir Bhutto finally matures and the ruling PML-Q is willing to re-elect the president for a second term from the current assemblies, the Supreme Court remains the biggest hurdle in the process. Its verdict on the President’s re-election case will determine the political fate of the country heads in coming weeks.