Let the Constitution prevail

While the country is trying to cope with some of the most crucial issues in its history, an unseemly stand-off between the executive and judiciary promises to create a crisis of unwieldy proportions. Differences that arose in the wake of the verdict on the NRO could spin out of control unless both sides adhere to the constitution in letter and spirit.
The Supreme Court had directed the government to write to the authorities in Switzerland to reopen the cases against Zardari. When this was not done, the apex court directed the government to remove the NAB chairman. The government, however, failed to carry out the directive.
When pressed to explain why the court's orders were not implemented, the Attorney General decided to quit instead of defending the government's position. Now the Supreme Court has summoned Law Minister Babar Awan to explain why its orders have still not been carried out.
The government holds that it has accepted the Supreme Court verdict on the NRO and has, in fact, implemented it in all respects except writing to the Swiss government to reopen the cases against Zardari. The directives could not be complied with, according to the government, as Zardari enjoys constitutional immunity from cases as president of the country.
The stand was supported by the Swiss Prosecutor General Zappeli, who told Reuters that under international law Zardari enjoyed immunity from prosecution as head of state unless that state itself lifts the immunity. To quote the official, "Immunity is the key question. We cannot prosecute Zardari unless Pakistan lifts that immunity. And if he does not have that immunity, why don't they try him in Pakistan?"
How can the immunity be lifted? For this, the constitution needs to be amended which can be done by parliament alone. That the issue of president's immunity was not raised during the lengthy deliberations on the 18th amendment indicates that the parliament was not keen to remove the constitutional provision.
Other causes of friction are also being added. While Lahore High Court upheld Rahman's Malik's conviction on Monday, Zardari pardoned him the same day on the advice of the prime minister. A better way would have been for the interior minister to appeal to the Supreme Court. However, the president was authorised to pardon under Article 45 of the Constitution.
Zardari, who considers himself to be under-attack may also pardon Babar Awan, on the prime minister's advice, if he was to be punished for obstructing the reopening of the Swiss cases, again on the prime minister's advice. The escalation has led certain quarters to react abnormally. Among other things, appeals are being made to the army to intervene and rid the country of Zardari, who is being presented as the source of all evil.
Reacting to a statement by defence minister Ahmad Mukhtar regarding the next COAS, a well-known journalist, writing in a national English daily on Monday observes, "The basic issue is whether the Pakistan Army will allow a political leader who has a tainted past, who has a tainted present and whose future is evident from what he is doing, to dictate the terms of reference of how this country will be run and by whom, including the future of the army which has the highest stakes in the country."
The exhortation continues further. "What can be said with utter certainty is that the institution of the Pakistan Army knows Zardari inside out and how much they can trust him is all but evident. If the same army, which knows what Zardari is capable of, allows him to demolish the only two vibrant and independent institutions - the restored judges and the free Press - then an obituary of the political system and possibly the country can be written, almost prematurely."
Now this is hype taken to a most unrealistic point. Zardari is in no position to "demolish" the independent judiciary. This explains why the interior minister has moved from court to court over the last few months fighting cases instituted against him.
The PPP government, however, holds that the elected government must not be removed before it has completed its five-year tenure. It considers any attempts at the disqualification of the president as initial moves to prematurely terminate the government's tenure. Keeping in view the 1988-99 era, fears of the sort cannot be considered irrational.
And how can Zardari demolish the media? The media has earned its independence and there is no possibility of its being taken away in a democratic era. There is a perception that the media has in cases gone to extremes, punishable under law in some advanced democracies. But this is natural. New-found liberty makes people go to extremes before they become used to it and then begin speaking in low tones and with confidence.
The writer obviously realises that with the prime minister fully supporting the president, there is little hope of the administration implementing any adverse judgement against Zardari. This is a point for the courts to ponder. Will they seek the army's help if the executive declines to carry out orders that could, in the latter's estimate, lead to a premature end of the PPP administration?
Many people in this country consider that Zardari is a president only by default. He had been sidelined by Benazir herself on account of lack of political understanding on his part and perhaps, because of the reputation he had accumulated. But they also believe that the best way to get rid of him is to let him expose himself during the rest of his tenure instead of resorting to short cuts, which would bring the institutions into a deadly conflict.
Any conflict of the type could not only derail democracy, but also bring a bad name to the judiciary and army. Once Zardari is out of power, after the completion of his tenure, he would not have the constitutional protection from litigation. Let the cases against him be reopened then.
There is no urgency. The unfounded fear that Zardari would 'destroy' the country, if not removed urgently, is sheer schizophrenia. If Zia could not destroy the country in eleven years and Musharraf could not do so in nine, Zardari will not complete the mission his critics ascribe to him in just three years' time, particularly in the presence of an independent judiciary and a free and highly critical media. Meanwhile, what is needed is for every institution to act strictly according to the constitution. Any infringement on one another's turf would cause suspicions and lead to unnecessary confrontation.