The latest battle between Pakistan’s elected officials and its judiciary heated up this week when the Supreme Court announced plans to indict the Prime Minister on charges of contempt of court. We wanted to find out what’s behind the latest battle, so we asked comparative law specialist and features writer for Dawn, Waris Husain, for some insight and he was gracious enough to accomodate us.
Q: The New York Times reported on Thursday that Pakistan’s Supreme Court has announced plans to charge the Prime Minister with contempt of court. What did the Prime Minister do, exactly?
A: The Supreme Court held in 2009 that an ordinance passed by then President Pervaiz Musharraf which gave immunity to many political figures was unconstitutional. Since the decision was handed down, the executive branch dragged its feet in implementing the court’s holding overturning that the National Reconciiliation Ordinance (NRO). President Asif Ali Zardari was one of the individuals who benefitted from the ordinance as he had been facing criminal cases in Pakistan as well as a corruption case in Switzerland. The court has continually asked the Prime Minister and other individuals to follow up with the Swiss case against President Zardari by writing a letter to Swiss authorities requesting that the case there be reinstated. The Prime Minister has not written this letter, and thus he is being held in contempt of court for not executing the court’s order.
Q: The Prime Minister’s lawyer, Aitzaz Ahsan, made an interesting observation recently. He said the Prime Minister is a government official acting under the advice of his counsel. If government officials can be held in contempt for following the advice of their lawyers, what sort of precedent does that set?
It certainly can set a dangerous precedent. In the U.S., several Supreme Court decisions allow for a president to be immune from prosecution so long as he acted in good faith at the behest of his counsel. This is to allow the President, who has to make very complex decisions at a high frequency, the ability execute the functions of his job without worrying about pending litigation. This principle is taken far further by the Pakistani constitution which guarantees absolute Presidential Immunity in Article 248. The “legal advice” Mr. Ahsan was referring to was that the Prime Minister could not write a letter to the Swiss authorities about Zardari because such an act woud violate the immunity the President enjoys.
However, the real issue at the core of the court’s order against PM Gilani is the question of who is the final judge of the constitutionality of an act. Though Ahsan raised the issue of legal counsel, the tribunal responded that Gilani could have disregarded any advice that was contrary to the court’s order. Throughout its decision, the court relies on its power of judicial review to be the ultimate decider of the constitutionality of laws, and they implicitly argue that the Executive needs to implement that decision without critically examining its legality.
What about the government’s claim that the president enjoys immunity from prosecution during his term in office? The court seems to be questioning that, but highly respected Pakistani jurists seem puzzled by this. The wording of the Constitution does seem pretty clear.
The American courts developed presidential immunity over time, finding that it was necessary in order to give the President the ability to carry on all the responsibilities he has been constitutionally tasked with. As I said earlier, Pakistan is unlike the U.S. because its constitution has an article guaranteeing absolute immunity to a sitting head of state – and the language is clear. Therefore it is striking to see the court focusing so aggressively on Gilani’s inaction in the Swiss case where the President enjoys immunity. This is partly because the general attitude of the court has been one of growing frustration at the lack of implementation of its orders by the current administration. In many ways, the court feels its credibility is being attacked by Gilani refusing to send the letter, even though doing so would seemingly violate the presidential immunity clause in the constitution.
An article published last month in The Express Tribune (The New York Times’ sister newspaper in Pakistan) reported that the so-called ‘Swiss cases’ could not be re-opened. In fact, a 2008 Reuters report quoted Geneva’s chief prosecutor, Daniel Zappelli, saying that he had no evidence to bring Asif Zardari to trial.
Yes, in fact Ahsan reported to the court’s dismay that he had confirmation from the Swiss authorities that they would not pursue the cases against Zardari.
Some argue that many, if not most, of the charges brought during the 1980s and 1990s were politically-motivated – government officials using the courts as a political weapon against their opponents.
I am not certain about the numbers, and others are far more qualified to speak on that issue than myself. However, from a legal perspective, the court has a valid point in exercising its judicial review over the NRO. The decision to grant a pardon or excuse an individual should only come after a judicial body has held some sort of hearing on the case. The NRO essentially erased all charges that existed without allowing for review by the proper judicial bodies as to whether the charges were legitimate or not – which is the duty of the courts.
It could be that many of the individuals who were accused or convicted of crimes before the NRO were actually innocent and that the charges were politically motivated, but the court attacked the random selectivity of the process. Essentially Musharraf was handing get-out-of-jail-free cards to the politicians he needed to ‘reconcile’ with, and those individuals distributed the cards to their supporters. It is possible that many of the individuals were completely innocent; however, the right to determine which were innocent and which were guilty is the right of the court, not the executive.
There were over 8,000 individuals who received amnesty under the NRO, but the only case that seems to be given any serious consideration is the one against the president. Is this just because his is a high-profile case, or is the court targeting him specifically?
I believe the court is targeting Zardari specifically, and it is also disregarding the thousands of other pending criminal cases that need to be resolved. Some will claim this had to do with a personal enmity between Zardari and Chief Justice Chaudry, as the former hesitated in reinstating the Chief Judge after Dictator Musharraf was removed. Others will claim that the court is merely attempting to assert its role in the future of the nation, and is biting back against the non-cooperation of the ruling administration.
The timing is also interesting. With Senate elections expected next month and general elections within the next year, many are asking, why now? Why not let the people have elections without tarring politicians with legal brushes in drawn out court cases.
There seems to be a perfect storm brewing with regards to the coming elections. Elections should be entered into with all the institutions working together, rather than fighting and impugning the character of potential candidates because this would not benefit Pakistan’s democratic future. However, the NRO decision was passed three years ago, and so the Supreme Court has been awaiting an adequate response from the government since then, and has not been satisfied. Much of this is due to Zardari and Gilani’s own strategy of avoiding the implementation of the court’s decision, and making the court play the waiting game. So now that the court feels that its credibility and legitimacy is on the line, it is unwilling to pull back from the confrontation now.