Odor in the Court


There is something smelly about the latest legal arguments of their Lordships in the courts. Quite frankly, they smell (the arguments, not their Lordships). Cyril Almeida breaks down the really quite problematic thinking that seems to have infected some parts of the legal community. No cheerleader for Zardari, it’s pretty safe to take Cyril’s analysis as an honest assessment of the situation – certainly more so that those fawning for attention from the Chief Justice.

Right, here we go again. It’s the next round between … well, we all know who, but for legal reasons we have to refer to it as the ‘judiciary-executive’ clash.

Come Monday, it’s show time. The black robes of the Supreme Court will all gather in Courtroom No 1 to hear matters of great national import. At this stage it’s pointless to go through the legal minutiae; few doubt that the court can, and may, be embarking on a great rewriting of our laws.

Rewriting laws on a grand scale isn’t really the done thing in Common Law jurisdictions, which prize precedents and elegant legal arguments marinated in academia for years. But it is possible and few honest lawyers (!) could, hand on their hearts, claim that it isn’t the court’s prerogative.

The problem lies elsewhere. Take the challenges to the 18th Amendment. There’s all this business of ‘judicial independence’ and the ‘separation of powers’ bandied about by those wanting the new system for appointing judges to be struck down. It’s a sham.

The petitioners hate Asif Zardari and love CJ Iftikhar, and that, more than any legal argument, is what’s driving their opposition to the 18th Amendment. They don’t even bother to hide it very well, so convinced they are of their righteousness. How can you trust that man, they spit. And how can you not admire the spirit of the chief justice, they eulogise.

There is of course a middle ground out for the court in this mess. It could simply declare that while it does have the power to strike down a constitutional amendment, there’s nothing in the 18th Amendment which passes whatever strict test is necessary for striking down an amendment. Simple? Don’t hold your breath.

And that’s before we get to the NRO hearings. Babar Awan facing off against 17 judges led by CJ Iftikhar? It’s a script you wish never had to be written. The potential for disaster is high. Courtroom No 1 is the perfect venue for grandstanding and both sides may find the temptation too hard to resist.

Babar Awan because, well, he’s Babar Awan and doesn’t miss a chance to impress the boss (what would impress you and me isn’t necessarily the same as what impresses AZ). And some of the judges may decide to stand out from the pack and give it to the law minister and sundry government officials in the neck.

Frankly, if there’s a likely middle ground here, I’ve yet to hear of it. The only obvious escape route was what’s happened in the missing persons cases: the court makes a show of looking for the missing persons and earns some brownie points for doing so; the shadowy establishment hangs on to its prisoners and goes about its business as usual, occasionally turning over a prisoner it no longer has any use of.

So it could have been that the court occasionally reprimands the government and yelps about NRO implementation, while the government occasionally would offer up a sacrificial lamb from amidst its ranks who the president would then quickly pardon. But a full-court hearing is hardly the stuff of a compromise in the making.

And all of this before we swing over to the Lahore High Court, where a potentially explosive set of petitions has been quietly wending its way through the court: the challenges to Zardari holding the presidency concurrently with the PPP leadership. The constitution doesn’t expressly prohibit the so-called ‘dual office’, but it doesn’t look good. To some it looks downright monstrous given that it’s Zardari who is the occupant.

And therein lies the rub. In a better world, in a more stable polity, in a land of fewer conspiracies, all of these legal problems could be resolved without reference to the person of Asif Zardari. Or at least without centralising him. But Pakistan isn’t that better world with a stable polity and devoid of conspiracies.

While the intensity of the opinion may vary, within the PPP you’ll struggle to find anyone who believes there’s no agenda against their guy, and by extension, the party. The analogy, as with all analogies, is imperfect, but there’s a July-November 2007 feel in the air. And even people with sympathies that lie elsewhere are beginning to feel it.

The hows and whys are difficult to break down. The starting point is the PPP’s feeling that it is hated, or viewed with acute suspicion at the very least, by the establishment. Back in the ’90s, that meant being on the wrong end of troika politics: the president and the army chief would gang up against BB.

AZ defanged the troika of old by grabbing the president’s slot, but a new, softer troika has taken its place and once again the PPP leadership finds itself squeezed from two sides, this time the media and the judiciary. Could there be a puppet master in the background, the hard-core jiyalas speculate.

The less fierce point to something else: somehow the glue that seems to bind those who oppose the party is right-of-centre, if not thinly veiled rightwing, politics. Isn’t it curious that the media attacks on Zardari have been led by the jihadi lot, they wonder. Odd isn’t it that dormant Islamic clauses in the constitution are being given a new lease of life, they muse.

Maybe, maybe not. There’s an intermediate step between wanting someone out and actually getting him out: finding an alternative. Right now, there isn’t one. Nawaz Sharif? He’s quiet and still viewed with suspicion, within the establishment and abroad.

Musharraf and his latest incarnation of the PML? He’s got too many enemies and little real support. At best, he can hope to be a Leghari-type figure, fighting for the crumbs that fall from the table of power. A coup? The rightwing in the media and the judiciary will devour the rightwing in the army just now.

If there is such a thing as a vast rightwing conspiracy in Pakistan, would they try and oust Zardari? You bet. For acutely personal and seriously ideological reasons.

My guess, though: he isn’t on his way out just yet. They have to find the alternative first. Until then, they’ll be content with making his life a little less comfortable.

The danger: Zardari may revert to type and wade into the mud to fight a fight he doesn’t need to and can’t win.

Either way, the calm of the last few weeks looks set to end. What we don’t know yet is whether the strom will be of the teacup variety or a category 5 hurricane.