Pakistan: Supreme Court vs. Democracy

Pakistan’s institutions are increasingly being diminished in a series of bruising turf battles. In the latest episode of a long-running serial, Pakistan’s Supreme Court has asked the new Prime Minister, Raja Pervez Ashraf, to appear before it yet again, on September 18, for failing to write to the Swiss authorities to re-open corruption cases against President Asif Ali Zardari.

Ashraf could well meet the same fate as Yusuf Raza Gilani, who was ejected from the Prime Minister’s office on June 19 for refusing to obey the Supreme Court’s orders relating to alleged fraud committed by President Zardari.

This is not a new scenario. Since the 1954 dissolution of Pakistan’s Constituent Assembly to successive military takeovers in 1958 (Ayub Khan), 1969 (Yahya Khan), 1977 (Zia-ul-Haq) and 1999 (Pervez Musharraf), the judiciary has played a key role in legitimising the usurpation of civilian authority by Pakistan’s generals.

So, generals have fought prime ministers, chief justices have fought prime ministers, sometimes the army chief has quietly aided the courts in putting pressure on a civilian government or the general-of-the-day has sat back and enjoyed the battle between court and prime minister.

The case against Gilani and Ashraf is the same; both have refused to accede to the Supreme Court’s orders to reopen alleged corruption cases against their boss, President Asif Ali Zardari, by writing to Swiss authorities.

After a bruising battle with the judiciary, Gilani was convicted on April 26 and served a brief sentence for contempt of court but continued in “office.” On June 22, Gilani made way for Ashraf. On August 27, Ashraf appeared before the Supreme Court and sought more time to respond to the contempt charges against him.

In its August 8 order, a five-judge bench, headed by Justice Asif Saeed Khosa, displayed its impatience, saying that the “restraint exercised” by the court was “not without any limit.” The sentence is revealing – it appears to be a clear and present threat to Prime Minister Ashraf’s position. The game, it appears, is to ensure that Ashraf’s government remains as non-functional as Gilani’s.

Given the uneasy relationship the current Pakistan People’s Party (PPP)-led civilian government has had with the Army, with dismissed Prime Minister Gilani describing the country’s powerful intelligence agency, the Inter-Services Intelligence (ISI) Directorate, as “a state within the State,” the Court is clearly aware of the weakness of the ruling administration.

There is much speculation about the role of the Supreme Court of Pakistan: Is it playing a political game? Is it acting at the behest of the Army, which has made no secret of its unhappiness with the PPP government? Who does this order benefit? Who are the winners and losers?

Clearly, the Supreme Court appears bent on weakening civilian authority and strengthening army control in Pakistan. Over the years, it has used the bizarre-sounding “doctrine of necessity” in validating the rule of Pakistan’s many Army dictators like Ayub Khan, Zia-ul-Haq and Pervez Musharraf. The doctrine’s basis: that what was necessary in the circumstances was done.

So following army takeovers, judges in the past have taken oath under a martial law framework – visibly indicating that their loyalties were to the uniform of the general and not the constitution or law of Pakistan. The Supreme Court has attempted to legitimize the reality in Pakistan: that the army remains the permanent establishment whereas the democratic government may be a transitory phenomenon.

It’s ironical that the Chief Justice Iftikhar Muhammad Chaudhry – who stood up to President Pervez Musharraf in 2007 and triggered the nationwide pro-democracy lawyers-led movement – is currently presiding over a Supreme Court preoccupied with the task of whittling down the gains of democratic movements in the country.

By cutting Zardari and his ministers to size, the Court is helping the Army in its efforts to ensure that the PPP does not return to power. The Army will certainly be more comfortable with a non-PPP arrangement in Islamabad following the next general elections in 2013. (The two other contenders in the elections are Nawaz Sharif and Imran Khan.)

In the current scenario, the Army and its chief, Ashfaz Pervez Kayani, cannot be displeased with the drama unfolding in the Supreme Court. The popularity or unpopularity of the PPP regime is not the issue; at issue is the larger trajectory of democracy in Pakistan. Intra-institutional battles mean that a stable democratic condition continues to elude Pakistan, and the capacity of an elected, civilian executive to govern the country is still in doubt.

This is not good news for Pakistan, or the neighborhood it resides in. Given its dire economic and social condition, it is worrisome that President Zardari’s PPP government, instead of addressing key challenges like continuing terrorist violence, the power crisis and growing attacks on the minority community, is locked in a battle of survival with the Supreme Court.

The country’s institutional inability to distribute power between the executive, judiciary and the army has yet again been exposed. In democracies, even quasi-democracies everywhere, unpopular governments have the right to complete their tenure and the people the authority to vote out an unpopular regime. Whether this will happen in Pakistan now remains to be seen. As Pakistan moves toward elections in 2013, the Supreme Court has ensured that the civilian government remains a non-performing asset.

Amit Baruah is the South Asia Studies Fellow at Gateway House: Indian Council on Global Relations.

Hindustan Times published this article, on 5 September, here.

This article was exclusively written for Gateway House: Indian Council on Global Relations. You can read more exclusive content here.

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