CJ Chaudhry and Zardari are here to stay

Published: June 21, 2012
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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.