ISLAMABAD - The Pakistan Supreme Court's decision to begin contempt proceedings against Prime Minister Yousaf Raza Gilani over his failure to reopen corruption investigations into President Asif Ali Zardari, appears to be in step with attempts by the all-powerful and equally aggressive military and intelligence establishment to drive out the Pakistan People's Party (PPP)-led government.
By demanding that Gilani explain himself later this week, Pakistan's highest court on Monday night fanned the turmoil
gripping Pakistan, even as the danger of a blatant military coup has faded following a one-on-one meeting between Zardari and army chief General Ashfaq Kiani.
Gilani, who could be forced from office if convicted, faces the combined might of an increasingly sure-footed judiciary and a defiant military leadership that keeps trying to assert power over a civilian government that faces Senate elections in March and which the PPP is expected to win.
During a compelling performance before parliament on Monday night, Gilani said he would appear before the court. "We have always respected the courts. The court has called me and in respect to the court, I will go on January 19 and appear." in a televised speech, Gilani said, "The army and the judiciary, they both have to protect democracy in Pakistan. They can't remove democracy. They can't pack up the system."
There are clear indications to suggest that the military establishment is trying to dislodge the Zardari government with the help of the Supreme Court, whose defiant Chief Justice Iftikhar Mohammad Chaudhry has an obvious soft spot for opposition leader and former prime minister Nawaz Sharif as a prime minister-in-waiting and owes his current position to Sharif, whose 2009 anti-government march had played a key role in his restoration after he had been sacked by the administration of Pervez Musharraf.
The court has demanded the government ask Swiss authorities to reopen corruption cases against the president that date back to the 1990s. The government has refused to write a letter to the Swiss to reopen investigations into allegations of Swiss bank accounts held by Zardari, maintaining that he enjoys presidential immunity.
Taking strong exception to the government's reluctance, the January 16 apex court order said that tough action could be taken against those responsible - irrespective of their office or official authority - for not implementing a 12-page order last week that read like a damning indictment of the government in defying the Supreme Court's verdict in various cases, especially one relating to the National Reconciliation Ordinance (NRO).
The NRO was a controversial presidential ordinance issued by Musharraf in October 2007 to grant general amnesty to politicians, political workers and bureaucrats accused of corruption, embezzlement, money laundering, murder and terrorism between January 1, 1986, and October 12, 1999. That was the time between two states of martial law in Pakistan and the NRO was aimed at promoting national reconciliation and removing vestiges of political vendetta and victimization.
The court order lays out six options before the government, including one in which the president, prime minister and the law minister could all be disqualified from holding public office if they persist in refusing to implement the NRO verdict, which required among other things that the federal government write to a court in Switzerland and reopen cases of alleged corruption against Zardari.
The order noted that the president and the prime minister seemed to be loyal not to the state but to a political party. While Zardari and the government have indicated that the president is provided immunity under the constitution, Chaudhry has responded that the president must make that claim before the apex court.
The charge-sheeting of Zardari and Gilani, warning them against a possible disqualification if they do not implement the apex court's orders for reopening corruption cases, amounts to a judicial coup against the government at a time when the powerful military establishment and frail civilian leadership stand eyeball-to-eyeball in the Supreme Court, which is hearing the infamous "Memogate" scandal despite objections raised by the government that the apex court should not have taken up the case when parliament was already investigating the matter.
Memogate revolves around an alleged memorandum addressed to former US army chief Admiral Michael Mullen and seeking Washington's help to ward off a possible military coup in the wake of the May 2 killing of al-Qaeda leader Osama bin Laden in a covert US Navy Seals raid inside Pakistan.
American-Pakistani businessman Mansoor Ijaz alleged that the former Pakistani ambassador to the United States Husain Haqqani had asked him to deliver the confidential memo, seeking US assistance against the aggressive designs of the Pakistan army. Mansoor further claimed that the memo was drafted by Haqqani at the behest of Zardari and delivered to Mullen through former US national security adviser, General James Jones, after the raid that killed Bin Laden.
Kiani took up the issue with Zardari, asking him to summon Haqqani back to Pakistan and initiate an inquiry against him. Haqqani finally resigned following a November 22 meeting of the civil-military top brass that included the president, the prime minister and army chief, as well as Inter-Services Intelligence (ISI) head Ahmed Shuja Pasha and Haqqani himself. The government subsequently referred Memogate to the Parliamentary Committee of the National Assembly on National Security for a thorough inquiry.
The committee was created by Gilani after the approval of a resolution in the joint session of the two houses of the parliament and with the consent of all the ruling and opposition parties. Before the committee formally opened, Sharif approached the Supreme Court, alleging that the memo was approved by the country's top political leadership and the court should conduct an inquiry to fix responsibility.
In an unusual move, Sharif himself presented his case by reading out the entire petition in the apex court, seeking action under Article 6 of the constitution against key government personalities, in case the issuance of the memo was established. A nine-judge larger bench headed by Chaudhry subsequently ordered (on December 1 and without much deliberation) the setting up of a judicial commission to investigate the authenticity of the memo.
The court orders in the NRO case were issued after Gilani last week told a Chinese newspaper, the People's Daily Online, that the army chief and ISI chief had not been given approval by the competent authorities before submitting their responses with the Supreme Court in the Memogate case and they seemed to have acted unconstitutionally. The responses were submitted with the apex court through Defense Secretary Lieutenant General (retired) Naeem Khalid Lodhi, who stated that the government had no operational control over the armed forces or the ISI.
It was under the NRO that two twice-elected former prime ministers - Benazir Bhutto and Sharif, who had been living in exile - returned to Pakistan to take part in the 2008 general elections that the Musharraf-backed Muslim League eventually lost. But after the installation of the coalition government led by the PPP, the NRO was declared unconstitutional by the Supreme Court on December 16, 2009.
This threw the country into a political crisis as the government was compelled to reopen hundreds of corruption cases that had been withdrawn - and the refusal of the government to reopen investigations into the president, maintaining he has presidential immunity under Article 248 of the constitution.
Well-placed Law Ministry officials in Islamabad are amazed at the court's decision to also issue notice to the president on Sharif's petition as they point out that under Article 248(2) of the constitution, no criminal proceedings whatsoever can be instituted against the president during his five-year term of office.
They point out that the only action that could be taken against the president is under Article 47 of the constitution that provides for impeachment. But the president could only be impeached by parliament in order to pave way for initiating criminal proceedings against him.
The chief justice has already asked the Pakistani attorney-general to submit the president's reply on the Memogate scandal or the court would be bound to believe that he had confessed to his alleged involvement in the case.
What kicked up a storm was the complete difference of views between the government's response filed with the court and those of the army and the ISI chiefs. While Kiani and Pasha not only acknowledged the existence of the memo and described it a threat to national security, the government maintained that Sharif's petition, seeking court intervention in a case that had already been referred to a parliamentary committee, should simply have been dismissed.
The media wing of the Pakistani military - the Inter-Services Public Relations (ISPR) - subsequently issued a stern press release while taking notice of Gilani's remarks against the army and the ISI chiefs. "There can be no allegation more serious than what the honorable prime minister has leveled. This has very serious ramifications with potentially grievous consequences for the country," said the ISPR press release while literally threatening the prime minister.
That the ISPR statement infuriated the prime minister was evident in the immediate sacking of the defense secretary for gross misconduct and acting illegally by filing the responses of the army and ISI chiefs to the apex court without getting clearance from the Defense Ministry. Lodhi was considered close to Kiani, being the most senior bureaucrat responsible for military affairs, a post usually seen as the military's main advocate in the civilian bureaucracy.
It was against the backdrop of these developments that Kiani finally met Zardari on January 14 after an unusual gap of two months and reportedly expressed displeasure over remarks by Gilani over the memo petition in the apex court. According to Reuters, "The army chief complained to the president about the prime minister's statements, and said they needed to be either clarified or withdrawn." Presidential spokesman Farhatullah Babar denied media reports on the contents of the meeting.
Taking stock of the current impasse among different state institutions, the Daily Times stated in its January 16 editorial:
That parliament is supreme as per our constitution and the question of civil-military imbalance needs to be addressed is something no democracy-loving citizen would deny. At the same time, it is no secret that the military is the most powerful institution in the country. This government has tried its best to appease the military in many ways, especially post-Abbottabad Osama raid when even the opposition was railing against the military. Democracy returned to Pakistan after nine years of military rule in 2008. Ever since, moves have been afoot to destabilize the democratically elected government by hook or by crook. From spreading negative information in the media about the government to judicial activism, no stone remained unturned in ousting this government.
So far, the government is sitting tight. Taking on two of the most powerful institutions - the army and the judiciary - takes some guts, which is what the government is trying to do these days. It is good to see the government taking parliament on board in favor of democracy through a resolution to this effect. What remains to be seen is whether this pledge will translate into anything meaningful given that the knives are out against the government, be it in the opposition circles or within the state institutions. Whatever the outcome, the most affected would be the people of Pakistan.
Having directly and indirectly managed the country's affairs and tasted political power for more than half the period of its post-independence 60-year life, the army has ceased to be apolitical. It is now taking a watching brief as the courts take on the government.
Amir Mir is a senior Pakistani journalist and the author of several books on the subject of militant Islam and terrorism, the latest being The Bhutto murder trail: From Waziristan to GHQ.
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