Credit must be given to Prime Minister Yousuf Raza Gilani for appearing before the Supreme Court in a dignified manner, sans the rowdy crowds that accompanied Nawaz Sharif when he was summoned as a sitting prime minister. Unlike Nawaz’s defiant mannerism, Gilani’s address to the court was dripping with deference and the nattily dressed CEO of the desperately poor nation did not rattle any judicial nerves either. It was a perfect Kodak moment, except for one little niggle: The prime minister may have been less than generous with this irritating phenomenon called the truth.
The prime minister, and his brilliant barrister Aitzaz Ahsan, would have the seven-member bench, and the 180 million ignorant us, believe that his refusal to write the darned letter to Swiss authorities in pursuance of the verdict of the 17-member bench was not willful default but had been sired by the legal advice offered by the government’s team. In other words, the gentleman was at worst just an ‘accidental defaulter of justice’.
Kaput. If only life, and politics, were that simple. We would never know for instance whether this flawed legal team had also recommended that the PM make provocative statements in the house or portray a legal matter as a trial of the grave of Shaheed Mohtarma Benazir Bhutto. Was he also ‘advised’ to issue slanted statements against the Supreme Court and encourage humiliating and mocking theatrics by his sitting and former ministers? It would have added to the bona fide of the prime minister if he had shared why two attorney generals had walked out of their jobs in a huff and an equal number of changes had taken place in the office of the federal law secretary – particularly so when one of the former AGs has repeatedly stated publicly that he had advised the Gilani government to obey the court and write the letter.
Maybe the un-willful prime minister should also have told the court about the undeclared ‘willful’ purpose of the special session of parliament convened in the wake of the dismissal of the NRO review petition. According to someone who was involved in the entire judio-political consultative process (and ultimately affected the outcome as well), the core committee of the PPP advised by its legal eagle had decided to move a presidential reference against Chief justice Iftikhar Chaudhry and some others in parliament. Upon learning of this harakiri move, the leaders of the allied parties simply balked and plainly told the president and the prime minister that such a move could lead to a parting of ways. In this particular meeting, attended by the president, the prime minister and the head honchos of their closest trusted government allies, Dr Babar Awan faced some rather harsh criticism for supporting such a suicidal strategy. When the crazy idea of a presidential reference to the parliament was abandoned in favour of a parliamentary resolution, another heated debate took place over its proposed anti-judiciary tenor and the insistence that it come across as a direct vote of confidence both for the prime minister and the president. Here too the government backed off only when faced with the consequence of the allies walking off.
What transpired in this meeting exposes our rulers’ intrinsic and larger contempt for rule of law and not necessarily just the court itself. When a constitutionally elected government of the day wants to vanquish a constitutionally constituted Supreme Court only because it wants the government to observe its constitutional obligations then something is seriously wrong with the ruling mindset. Hardly a case of ‘accidental judicial defaulter’.
What is really at stake here in the ongoing contempt case, one wonders. Is it merely the criminal culpability of an individual called Yousuf Raza Gilani? Is it about a sitting prime minister telling the Supreme Court to take a hike come what may? Is it about the lame legal defence of I-didn’t-do-it-my-lawyer-told-me-to-do-it? Or is it about the court itself committing contempt of justice by not taking a stand for one ruse or another and not doing enough to implement its verdicts? It seems to be a little bit of all the above but the crux of the matter is: who gets to be the ultimate adjudicator in issues of law and justice and the final arbitrator in a case of constitutional interpretation? Will it be the Supreme Court of Pakistan or the lawyer(s) of the prime ministers and presidents? As put succinctly by former chief justice of the United States, Warrenberger, when faced with a similar question and referring to the US supreme court: “We are bound by the Constitution, and the constitution is what we interpret it to be”.
Will that ever be the case in Pakistan or will we see every recalcitrant and defiant government attempting to take refuge in the mantra of judicial activism and judicial overreach? What Pakistan suffers is not judicial overreach but executive under-delivery. But that’s another discourse better left for another occasion.
During Thursday’s preliminary hearing of the contempt case, Justice Khosa put it bluntly to Barrister Aitzaz that the court would like to see the “will” of the prime minister and asked him if he was willing to write the court ordered letter to Swiss authorities if that were the final word of this bench. It was a deliberate, willfully straight question, warranting a direct response. While implying tacitly that the verdict ‘may’ be implemented, Aitzaz was deliberately evasive in offering a direct reply and instead said that in such an eventuality “‘I’ would be acting in accordance with the Constitution.” The question again: who will decide what constitutes proper constitutional response?
The government would understandably want this legal wrangling to continue indefinitely till it runs the course first with the Senate and then the general elections. The postponement of the contempt case till Feb 1 seems to have taken care of the first phase. The judiciary now faces the dilemma of appearing to be in a hurry if it presses with a tougher and tighter timeline and of being spineless if it continues cajoling the government while breathing fire at the same time. It’s time for both the government and the judiciary to match deeds with words and let the nation breathe easy. We have bigger problems like a stagnant economy and millions disappearing under the poverty line every day and all this dilly-dallying isn’t helping matters.
It is the realm of the learned judges to decide upon the finer points of law, but for an ordinary citizen like myself, simply the commitment that ‘yes we will implement the court’s verdict’ would have been an ample demonstration of the prime minister’s will. Unfortunately, those words never came. Not even two years after the pronouncement of the NRO verdict. The country desperately needs rule of law, not that of rulers and lawyers.
The most significant development so far in the contempt case is that it already shows signs of opening the very debate that the government has been loathe to even countenance: that of presidential immunity. The ensuing arguments will surely also end up deciding the complex question of whether the writing of the letter to Swiss authorities is an issue of a civil liability (as suggested by the courts) which does not enjoy any immunity privilege under the Constitution or if it crosses the line as it involves coalescing in what is otherwise a clear criminal proceeding between the Swiss government and the respondents. The undeclared, biggest worry of the land’s mightiest however is not of a legal nature. It has more to do with the political consequences of the truth about where, and how, the $62 million stashed in Swiss vaults disappeared.