Are we are a step closer to it now - the doomsday scenario? With the injudiciously concocted Contempt of Court Act, 2012 jettisoned to the dustbins of history, the PPP-led government now stands on the precipice of August 8 without a sword Excalibur to shield its vulnerable prime minister against an advancing judiciary. If the political arena is like a room from which we have many apparent choices of exit, the courtroom has no extra safety valves. As Justice Khosa explained on July 25, the court is as if bound by a golden handcuff to which there is no key: a legal precedent exists and it must be followed. If Gilani went, Raja can’t be far behind.
Corollary: at this point, only the government, and not the judiciary, can find a way out of the write-the-letter mess. It was as if Justice Khosa was himself acknowledging the Pakistan People’s Party’s power to successfully play the political system like a wheel of fortune and was entreating upon it to use that very power yet again to help the court adjourn doomsday.
The question is: does the government want to be an accessory to stability? Is it ready to give up stonewalling and take up wall climbing?
In intense deliberations after the contempt law was struck down, and in the run-up to August 8, the coalition government has discussed three courses of action. The first was to simply ignore the court verdict because the government was “not bound to obey unconstitutional and illegal court rulings.” The second was to bring in another version of the contempt law through a Presidential Ordinance.
But then there was a third school of thought that understood that exercising options 1 and 2 wouldn’t help in finding a mutually acceptable middle ground with the Khosa bench. A change in mood – a tweaking of tactics, if not of strategy – was in order. It was time to find the golden mean between uncovering a legal solution to a legal problem and keeping the attack dogs ready on the political front.
Within the PPP ranks, the hand Justice Khosa outstretched on July 25 is been seen as much as a hand of reconciliation as the nervous beckoning of a court worried about being dragged through the mud for judicial overreach. After all, Justice Khosa must, undoubtedly, be feeling the unbearable weight of history as the agonising moment approaches when he may have to put his name, for all time to come, on a ruling that ousted a democratically elected prime minister.
Of course, nobody in the PM house or the presidency is under any illusions that the judges won’t go the whole hog again if they have to. But what has changed is that for the first time in a long time, the government seems to be seriously considering a rapprochement with the bench.
What would this rapprochement look like when nothing short of writing a letter will appease the court?
Insiders suggest that Team Zardari increasingly believes that the only way the Swiss would jump into action was if the courts here in Pakistan raised the question of where the money went after being de-frozen. That is, contrary to common opinion, the PPP doesn’t so much fear that the Swiss courts will reopen the money laundering cases against Zardari as that the courts in Pakistan may begin to pursue the question of where the released $60 million went after Swiss authorities closed the case in August 2008.
Thus, what the PPP is currently trying to figure out is how to write a letter that serves a dual purpose: has no effect in terms of activating the Swiss but which also decisively puts the matter to rest right here in Pakistan.
Among other things, then, the peace deal being conceived by the government may look something like this: the attorney general will comply with court orders and write a letter to Swiss courts asking that the Malik Qayyum letter be withdrawn – but only if the letter is accompanied by the court’s explicit ruling, as promised on July 25, that Zardari’s immunity is untouchable. Because were Justice Khosa to pen a verdict that explicitly upheld the president’s international immunity, not only would it put a lid, locally, on touching Article 248 – alluded to by the chief justice-led bench in the hearings against Gilani and also more recently during the contempt law case – but also safeguard the president from being subjected to foreign legal jurisdiction as a consequence of writing the letter.
Additionally, the executive may also ask that an allusion to Article 13 (forbidding double jeopardy) be included in the order. Consider that the president was convicted in Switzerland but his conviction was annulled upon appeal and he was later acquitted. In Pakistan too, his case has been heard twice and settled in his favour. The case for Article 13 can certainly be made and the president’s legal team is reportedly trying to find ways to make it – primarily to be able to foreclose the possibility of the boss being prosecuted within Pakistan even after he steps down as president. Because the idea is that if he isn’t being prosecuted in Pakistan, the possibility of the Swiss resurrecting a dead case after over a decade will vanish altogether. Indeed, reopening the case would be a very costly and time-consuming affair and with the host country itself not prosecuting a man, the Swiss would have little interest to do so either.
At bottom, the government has reached the point where it realises that it simply cannot ignore the court anymore and that beyond this point, there is either a deal on resolving the NRO stalemate – or no prime minister, once again.
Of course, never say never when it comes to Pakistan: an all out confrontation between the executive and the judiciary is still possible but for the time being, both sides are standing under the flag of truce, willing to count to ten before reactivating the countdown to doomsday.
The writer is an assistant editor at The News. Email: firstname.lastname@example.org;