VIEW: Is there a death wish in Pakistan? —S P Seth - Sunday, October 10, 2010

Source : www.dailytimes.com

It is ironic that Pakistan's highest court, which created the trigger for the restoration of democracy, might now become instrumental in its demise, not because it is their intention but because of a contested position on law

At times one wonders if the Pakistani state has a death wish! To be more precise, if its ruling elites (of all descriptions) are vying with each other to bring down their country. The question arises from the unseemly and potentially destructive tug-of-war between its government (representing parliament, in a sense) and the country’s highest judiciary, compounded further by the perceived threat of a military coup.

The judiciary apparently wants to reopen the corruption cases in Switzerland against Asif Ali Zardari (where he allegedly put away his ill-gotten wealth in his earlier incarnation as a minister in his wife’s government. However, as president of the country, he has immunity under the law from prosecution. But the court inclines to the view that it is for the judiciary to interpret the law.

Therefore, the issue basically is: which of the two institutions, the government (symbolising parliament) or the Supreme Court, has the ultimate say in interpreting the country’s laws. Generally speaking, it is the parliament of a country that enacts the law. And as long as the law is straightforward, there is no problem. Because the courts will simply go about their business of dispensing justice with reference to relevant laws.

The problem arises when the law is not so straightforward and might tend to go outside the spirit of the constitution. Which brings us to the present controversy. Though the judges in this case have not spelt it out, thye might think that the provision of immunity for President Zardari for his allegedly corrupt conduct does not square with the spirit of the constitution. In other words, parliament might sometimes tend to pass a law for political reasons. But it is for the Supreme Court to uphold the spirit of the constitution that might be at stake.

The court, therefore, might have a cogent point to make here. Which is that until and unless the primacy of law (both in its letter and spirit) is respected, the country’s democracy will have a false start and a cloudy future.

However, Pakistan is in all sorts of troubles. And, on top of it, to plunge the country into a constitutional crisis is a recipe for greater disaster. With the country’s Supreme Court unhappy with the government’s stand on the issue, the opposition might be feeling virtuous.

All this brings us to the role of the military. Altaf Hussain, MQM’s leader in exile, has already called on the military to intervene. According to a report appearing in The New York Times, General Ashfaq Parvez Kayani has read what seems like the riot act to the government for its incompetence in the handling of the country’s devastating floods and the perilous state of the economy. And he wants a radical overhaul of the government, which might even include the removal of President Zardari.

It is true that the government has failed to perform, even during the country’s worst floods, which has made the people very unhappy and furious. In such a situation, people can throw out their government at the time of the next election. The democratic process, however faulty, should be allowed to work itself out.

In some quarters (mostly for political reasons), there is a naïve belief in the military’s capacity to solve all the country’s problems when the going gets tough with the political institutions. But it should be clear by now from long spells of military rule in the country that the generals have not done any better in governing the country than the political class. Indeed, it might even be argued that the political generals are a problem rather than a solution for Pakistan’s myriad travails. In some ways, the idea of a back up system in the military for failures of the political class is a cop out. In any case, the generals end up co-opting the politicians in a subsidiary role. And the rot goes on.

So far, the generals only seem keen to give the government a good shake up. The armed forces are overstretched dealing with the Taliban insurgency, and terrorist attacks. Which should be a sufficient disincentive for the army against taking over civilian governance. In any case, it is not a good image for the country’s elected government to be told by the military how to govern. The government will be performing under the gaze of the military, with the generals deciding when to step in directly.

Therefore, the Pakistani government is in an unenviable situation, wedged in by both the judiciary and the military, and an opposition keen to exploit the situation to its advantage. On the face of it, there is no deliberateness between the judiciary and the military against the government. But the coincidence does not look too good.

Not long ago, General Musharraf sought to deal with the judiciary by removing the recalcitrant chief justice and putting him under house arrest, which led to large demonstrations, involving many lawyers and other middle class professionals. This, in turn, led to the restoration of democracy, with Asif Ali Zardari taking over as president of the country in the aftermath of Benazir Bhutto’s assassination.

It is ironic that Pakistan’s highest court, which created the trigger for the restoration of democracy, might now become instrumental in its demise, not because it is their intention but because of a contested position on law. And, as with General Musharraf at the time, the Zardari government is very unpopular. It is seen as corrupt, self-serving, unable or unwilling to deliver even under the direst national emergency of a natural disaster. And if the judiciary holds to what they regard as their lawful position and the country is thrown into a constitutional crisis, it has the potential of rallying people against the government.

Which, in turn, might bring the generals into power once again because in Pakistan its political class is reviled more than the generals. The army is seen as the last bastion of institutional authority. If the crisis comes to a point where the armed forces seem to be the last resort, it will attract to its political banner all sorts of groups and factions of dubious or not so dubious credentials. And the only ultimate winner will be the Taliban and other militant groups with gun in one hand and the Quran in the other.

The writer is a senior journalist and academic based in Sydney, Australia