ANALYSIS: Clash of institutions —Dr Hasan-Askari Rizvi

Courtesy to "Daily Times"

A clash among the state institutions can dismantle the current democratic process and create a more difficult situation for the military and the judiciary than the present predicament. There may not be a solution of the resultant crisis within the framework of the constitution

There are two types of politics in Pakistan. The elite or high politics focuses on the partisan and narrow interests of political leaders and parties. Their personal and party egos dominate their disposition. This also includes the key personalities controlling the state institutions like the executive, legislature, judiciary and military. They are influenced by professional, personal and corporate considerations. The other type of politics pertains to the concerns and problems of the common people. It focuses on their socio-economic and societal insecurities caused by price hike, growing joblessness and faltering healthcare, education and civic facilities.

The latest example of elite politics is the increased political confrontation in the aftermath of the Supreme Court (SC) judgement on the NRO. This judgement has created the spectre of a clash between the federal government and the superior judiciary, which could destabilise democracy and civilian rule.

Prime Minister Gilani assured the National Assembly on January 27 that “there was no danger to the present democratic system or any prospect of a clash of state institutions”. He made a similar statement on January 28. His confidence seems to be based on the constitutional provisions that stipulate that the president can be removed only by impeachment by the two Houses of parliament.

In a country like Pakistan where the governments are dislodged and the presidents are removed by military takeovers or manoeuvring from the sidelines, constitutional provisions are not an assured guarantee of security of key political offices.

Traditionally, the top brass of the military played a key role in the making and un-making of political governments. Now the superior judiciary is expanding its domain of power and stepping into what has traditionally been the sphere of the executive or legislature under the pretext of judicial activism.

Unless the judiciary and the military recognise that only parliament has the constitutional power to remove the president, the political future of the president will be in doubt and the clash of state institutions remains a possibility. Among these two institutions, the military holds the highest cards on the political future of the president. If it makes it known to the political class and the superior judiciary that it has no interest in Asif Ali Zardari’s removal through unconstitutional or extra-constitutional means, the current campaign for Zardari’s ouster will dissipate.

Some individuals, especially the prime minister, are making an earnest effort to defuse tension between the executive, especially the presidency on the one hand and the judiciary and the military on the other. If these efforts do not succeed, a clash among the state institutions can dismantle the current democratic process and create a more difficult situation for the military and the judiciary than the present predicament. There may not be a solution of the resultant crisis within the framework of the constitution.

Pakistan has lived from crisis to crisis and after every couple of years there are many people who project a doomsday scenario for the future of Pakistan. All such predictions have proved wrong. Let us hope that the possibility of the collapse of the current political system proves to be another false alarm.

The SC judgement on the NRO has created enough opportunity for the political opposition to target President Zardari for his ouster. The ongoing political discourse is focused on one person, although the SC judgement has reopened the cases of 8,041 persons.

The opposition demand that the SC judgement should be implemented is a code phrase for demanding the initiation of court proceedings against President Zardari on the basis of the revived cases. No opposition leader has talked of initiating impeachment proceedings in parliament against Zardari on the basis of corruption charges. They know that they cannot succeed, thus they are raising the issue outside parliament, hoping that the SC would suspend or disqualify him or direct the government to start court proceedings against him. They are also hoping that the army top brass would force him to quit.

The ‘Get Zardari’ agenda has led the opposition to give different interpretations to Article 248 of the constitution that stipulates blanket immunity to the president from all kinds of criminal proceedings. The well-known partisan interpretations are (i) the immunity does not apply to the cases registered before the assumption of office; (ii) court proceedings can be initiated and the court can pass a judgement but the judgement may not be implemented as long as a person is holding the presidency; (iii) the SC can waive the presidential immunity as provided in the constitution; (iv) the constitutional provision does not restrain the government of Pakistan from resuming the cases against the president in foreign courts., i.e. the Swiss courts. Some argue that Zardari’s candidature for the presidential elections of September 2008 has become questionable after the SC judgement of declaring the NRO as unconstitutional from the beginning. Therefore, they argue that his election as president should be declared illegal. An appeal on this issue has already been filed with the Election Commission of Pakistan.

No matter what the Zardari adversaries argue, there is no easy constitutional option available to them to get rid of him. Any deviation from constitution through the SC or the military would have extremely threatening implications for the future of civilian and democratic process and increase inter-provincial tensions. Three provincial assemblies have expressed confidence in Zardari. The Punjab Assembly, dominated by the PML-N, is the only provincial assembly that refuses to do so. Further, the ‘Get Zardari’ campaign is stronger in Punjab than in any other province. The PML-N has increased pressure on the government on the implementation of the SC judgement, especially some action against Zardari, and the new appointments in the SC and the Lahore High Court as recommended by the chief justice.

The current polarisation between the government and the opposition has nothing to do with the concerns and problems of the common people. If we make a content analysis of the speeches and statements of the political leaders of all political parties, most of these are focused on what can be described as elite politics.

Given the challenges faced by Pakistan mainly due to religious extremism and terrorism and the troubled economy, the government and the opposition need to pay more attention to these issues. Other issues that need immediate attention are Pakistan’s increased dependence on foreign economic assistance, declining exports and foreign investment and reduced industrial output. All these factors have negative implications for the lives of the ordinary people.

There is a need to bridge the gap between the preferences of the political elite and the concerns and problems of the common person. The greater the gap, the more insecure is democracy. If the current political trends continue, this gap is likely to increase and, as the political elite continue to pursue their self-serving partisan agenda, the possibilities of an institutional clash cannot be ruled out. This will cause a major institutional breakdown beyond the scope of the constitution.

Dr Hasan-Askari Rizvi is a political and defence analyst