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Pakistan's Supreme Court, Government On Collision Course

Pakistani President Asif Ali Zardari: Immunity from prosecution?
Pakistani President Asif Ali Zardari: Immunity from prosecution?
Conspiracy is a frequently uttered word in Islamabad these days, with the Pakistani capital awash in talk of a return to military rule and every political move being interpreted as a power grab.

In recent days, senior members of the governing coalition have been talking about a "judicial coup," in which the country's courts would oust politicians and form power by judicial processes, paving the way for an eventual military takeover.

Friction between the Supreme Court and the civilian government is high in the wake of the court's directive to reopen corruption cases against President Asif Ali Zardari in Switzerland. Given a deadline of September 24 to reply, Pakistani Prime Minister Yousaf Raza Gilani dutifully refused to obey it.

Gilani signed a government document presented to the Supreme Court on September 24 that reiterates the president's immunity from prosecution while in office and that, as supreme commander of the armed forces, he cannot be subjected to court proceedings in a foreign country. The document was leaked to the press, despite the government's request that it be kept secret, adding to the discord between the two bodies.

'Because of Politicians'

Speaking to the parliament on September 24, Gilani defended Zardari and said that court proceedings against him could only be initiated after the end of his term in 2013. The prime minister called on legislators to defend the supremacy of the constitution and to avoid portraying politicians as "thieves" -- a label increasingly being applied in the media.

Prime Minister Yousaf Raza Gilani
"You are the elected representatives of the people and you have to run this country. This country was founded by the politicians," Gilani said. "If this country has nuclear power, it was pioneered by the politicians. And if a constitution was framed, it was also framed by the politicians. If our nation united behind the war on terror, it is because of the politicians. Today, if we have made [constitutional] amendments, it is because of the politicians.

"Now tell me, which dictator has done any of this? Therefore, we should not be accused of supporting dictatorships."

Just hours later, however, opposition leader and former Prime Minister Nawaz Sharif was urging the government to follow the Supreme Court's directive, rather than moving toward confrontation.

Although openly opposing any talk of a military takeover, Sharif supports a change in government that would only be possible through a no-confidence vote against the government coalition led by the Pakistan People's Party.

"We want the government to reform itself -- meet the expectations of the people and provide them relief," Sharif said. "We don't want a change that involves replacing the current government with welcoming another dictator."

Lack Of Control

The current civilian government has been weakened by the military's control over foreign and security policies. A strident judiciary, with the military's quiet consent, has attempted to undermine President Zardari's authority by reviving corruption charges against him and regularly overturning his appointments and administrative decisions. The Supreme Court is hearing cases about changes to the constitution. Politicians see it as its effort to assert a final say over constitutional matters -- something the parliament considers its privilege in the current state structure.

Pakistani Senator Afrasiab Khattak says that confrontations between the government and the judiciary, and between the judiciary and the parliament, result from the lack of control over state institutions. These institutions, he says, were strengthened over more than three decades of direct military rule during Pakistan's 63 years of independence.

"We have to see as to which institution is transgressing its constitutional limits," Khattak says. "The constitution has determined the area of operation for every institution, but there seems to be some sort of polarization between state institutions while they are trying to assert themselves, and there seems to be a climate of confrontation."

Khattak says that the military is not involved directly in the ongoing confrontation. But given its clout, it has the ability to manipulate the outcome of the current confrontation by putting its weight behind one institution or the other.

Uneven Transition To Democracy

Athar Minallah, an independent lawyer, says that the current Supreme Court has buried the "doctrine of necessity" used to validate militarily dictatorships in the past. "It will never approve, endorse, or stamp any unconstitutional act," he says.

Observers nevertheless remain skeptical, suggesting that there are a number of conspiracies already afoot that aim to bring down the government.

Minallah was a senior leader of a lawyer-led protest movement that was instrumental in restoring current Chief Justice Iftikhar Muhammad Chaudhry, who was sacked twice in 2007 by former military dictator Pervez Musharraf. He says that the current crisis is indicative of Pakistan's uneven transition to democracy.

"The institutions are in the process of settling down. There has been 63 years of mind-set. That mind-set would also require time to change," Minallah says. "So I look at things coming out more positively."
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    Abubakar Siddique

    Abubakar Siddique, a journalist for RFE/RL's Radio Azadi, specializes in the coverage of Afghanistan and Pakistan. He is the author of The Pashtun Question: The Unresolved Key To The Future Of Pakistan And Afghanistan. He also writes the Azadi Briefing, a weekly newsletter that unpacks the key issues in Afghanistan.

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