CJ Chaudhry and Zardari are here to stay

Published: June 21, 2012

It seems Pakistan will be entangled between the Supreme Court and the government till September 2013. PHOTO: AFP

The Supreme Court’s disqualification of Yousaf Raza Gilani as Prime Minister of Pakistan has brought us to an unprecedented state of affairs in Pakistan’s history.

The court has, without a doubt, played its part in dislodging prime ministers before, but in the past it was acting, almost without exception, at the behalf of someone else – usually the army.

However, this time the court is acting independently, without any coordination with the so-called establishments. This is evident from the very facts at hand; the court has effectively brought the constitutional machinery of this country to a standstil. But neither the Army nor any political party (presumably backed by the Army) is capable of immediately replacing Zardari’s government.

The result is dreadful suspense and absurdity.

Before we proceed, let us recall that Asif Ali Zardari will remain president until September 2013 unless impeached by two-thirds of the Parliament. Iftikhar Muhammad Chaudhry will remain the chief justice of Pakistan until December 2013 unless impeached by his brother judges in the Supreme Judicial Council. And the present Parliament can remain in position until March 2013;  if it does, the next elections will have to be held within two months following March 2013.

Constitutional procedure

Let me first explain the procedural aspects at hand.

We are stuck in a futile to-and-fro between the Supreme Court and President Zardari. Given the status quo of things, we may very well be stuck with it till the September of 2013.

President Zardari, for various reasons you can well imagine, is not going to call for early elections; his only option is to appoint a new prime minister.

Indeed, he seems well-prepared for it as well.

The judiciary, on the other hand, is not going to flinch; they will be after the new prime minister as soon as one is appointed, and it’ll be a matter of weeks before the next prime minister is sent packing as well. Then another appointment followed by another exit, and so on will be the circle.

So does the 1973 Constitution of the Islamic Republic of Pakistan provide an out from this situation?

Unfortunately, no.

For one, this trench warfare is the very creation of the constitution itself. And two, the Supreme Court, bound by its own precedents, has already illustrated for the benefit of the general public what the constitution means to them, which is that we want the prime minister to write the letter to the Swiss but all we can do is disqualify him for contempt of court on the grounds of non-compliance.

Barring an act of God, such non-compliance is almost guaranteed, as President Zardari has also, in the parallel, illustrated to the general public already.

So we might very well be, actually are more likely to be, headed towards a year of monthly prime ministers. So much for the constitutional procedure.

If one looks closely, however, there are two ways  in the constitution that can give relief  from this tedious circle. However, they are not particularly useful at the moment.

The first is amending the constitution to pack the court. This will not be permitted on the grounds of basic structure-theory and what not, as it had threatened to do once before with enviable success, in the 18th Amendment case.

The second is by way of impeachment and removal of President Zardari by two-thirds of a joint sitting of the Parliament, but obviously this is not possible until after the general elections.

Extra-constitutional procedure

Now, judging from the historical trends alone, one may safely speculate that Yousaf Raza Gilani’s disqualification is some sort of conspiracy to dislodge the incumbent government and bring in either the Army or one of the opposition parties with the help of the Army.

This conjecture, however, cannot be true about the Army considering how things stand today;  General Kayani is in no position to add a major civilian responsibility to his pre-existing workload concerning the war on terror.

The speculation however may theoretically be true about the opposition parties supported by the establishment. Nawaz Sharif and Imran Khan, together, could muster the two-third majority in the Parliament to dislodge Zardari before September 2013.

Now that would be some drama to watch indeed.

Given the possibility of impeachment, President Zardari would be even less inclined to announce early elections and would, in fact, delay it as much as he possibly can.

Distasteful conclusion

It seems as though Pakistan will be entangled between Chief Justice Iftikhar Muhammad Chuadhry and President Zardari until September 2013.

Till then, just like loadshedding and the rest of the infrastructural disasters Pakistan currently faces, there is no immediate or viable solution to this problem.

Sultan.Babar.Mirza

Sultan Babar Mirza

Born and raised in Mian Channu, Babar did his BA/LL.B. from LUMS on an NOP scholarship. He then did his LL.M. from Michigan-Ann Arbor Law School on a Fulbright scholarship. He served as Justice Jawwad Khawaja's law clerk from May-July 2009 during for the 18th Amendment case. Currently Babar is an Associate at Amhurst Brown Barristers and Advocates, Islamabad.

The views expressed by the writer and the reader comments do not necessarily reflect the views and policies of The Express Tribune.

  • Farhan Khan

    Lets be a bit optimistic. This whole scenario is a part of Evolution of Democratic Process in the country. Earlier, the Army was supposed to be a supreme power in the Country. In 2007, Judiciary became powerful and started playing its de facto role in Country. I guess, in near future, our Parliament will be a powerful institution too and Balance of powers will prevail in the country. At this moment, there is confusion even among the experts of Law regarding the roles and jurisdictions of institutions. Its just a matter of Time that Pakistan will come to a strong system of Democracy with each institution in its limits.
    And by the way, it would have been better if CJP had focussed on reforms in Lower Judicial system instead of refining the governance in the Country.Recommend

  • butt jee

    Judiciary is not involved in any conspiracy against the Government. The next Prime Minister should better obey the judicial orders and write the requisite letter to the Swiss authorities and the present ugly situation will disappear within next one hour. We should all be proud of our independent judiciary which has not only enforced the rule of law in our country but has also protected the democracy by acting as a stumbling block against the Army’s intervention. Our judiciary today, is the only institution which has challenged the wrong doings of the most corrupt Government of our history. Independent judiciary is the best guarantee for the continuation of democracy and a ray of hope for the enforcement of rule of law.Recommend

  • PAK

    Agree with Farhan Khan, CJP should focus on lower judiciary because common people main concerns are with them. Recommend

  • Sane

    Maybe, just maybe, the Parliament will impeach the current government in the next few months and free us of this unsettled state of affairs

    How sweet words are these. Aap key moonh main Ghee Shakar.Recommend

  • Jpy

    @butt jee:
    You are right in the last sentence. Independant judiciary is the need of the hour but not a super active judiciary interested only in maligning one political party and conveniently shuting the eyes towards othersRecommend

  • Parvez

    You have conveniently left out what the people of Pakistan want, neigh have now started demanding and once the people take a stand, rules, constitution, parliament all will have to listen.Recommend

  • SOONVALLEY

    I would like to know, how much this Judicial System has contributed to detiorate Pakistan. Some times really wonder, if there is some calculator available which can tell that how much time of political people have been lost because of these judges. Recommend

  • Iram

    He always wishes to remain in the HEADLINES.Recommend

  • H.Raza

    The ousting of PM is within the realm of Constitution of Pakistan. Under Article 2-A, all laws in Pakistan are to be read with Islamic Principles therefore, no one is above law. Infact the government is under review more than a common man. This is also a part of the preamble of the 1973, Constitution. It is not Iftikhar Ch. who is doing it by himself. It is the law of the land now being properly intrepreted. PM or the Preseident are no institution any where in the world. It is the executive, leislature & judiciary which are the institutions however in accordance with Article 7 of the Constitution the State is defined as Legislarture & Executive. Judiciary is left to define itself as and when it wants. The constitution gives these powers to the judiciary so that the bogus, rubber stamp parliaments do not play with judciary over and over again like in the past 60 years. Without doubt the Army has done that too. However, times have changed as of now.

    The concept of Judicial review is applicable to PM, President, Legislature and evey member of the executive. Judiciary is so important that in the early islamic days the Khalifs would be the head of Ummah & be the Head Qazi so that no one does injustice. Justice is only done in thorugh one power that is the power derived from the court of God into the court of man. Therefore, he who does justice has a very strong role and cannot be undermined by the mandate of the people. Blief is all we need in the judiciary because it is the door to actual democracy. Recommend