The outburst by former Law Minister Babar Awan, flanked by former Cabinet colleagues, after the Supreme Court ordered the setting up of a commission to investigate Memogate, in which he made it clear that the federal government had no intention of setting it up, established a precedent. It showed a number of things, none really connected with Memogate. Even if the worst suspicions about President Asif Zardaris involvement in Memogate are true, and he indeed instigated the fateful memo, the refusal to accept the Supreme Courts order, not without precedent, would show that the government not only does not accept the trichotomy of powers prescribed in the Constitution and which is a prerequisite of democracy, but also that the PPP still sees itself as a vanguard party to which the judiciary should be subordinate. It is worthwhile in this to see the PPP as inheriting the mantle of Field Marshal Ayub Khan, who saw himself as the inheritor of the Raj, in which the judiciary was very much an adjunct of, and subordinate to, the executive, and existing to support it. Even now, it is noticeable that the American judiciary has been supportive of the executive in its persecution of Muslims, and thus it is, perhaps, not too much to expect an ally in that war not to escape that attitude. However, the difference between the American and the Pakistani executives is that the former is inured to the rule of law, while the latter still hankers for the arbitrariness of the past. The PPPs founder, Zulfikar Ali Bhutto, spent his early political career in Ayub Khans Cabinet, and learnt his style of governance from him. It was a style in which the head of government ordered, and was obeyed. When Dr Awan called President Zardari the 'spiritual son of Bhutto, he was not just referring to him being his successor as PPP Chief, or having been his son-in-law, but also referred, perhaps not deliberately, to his style of ruling, for President Zardari is the son of one of Bhuttos MNAs. The Supreme Court is no longer happy with being, in the Baconian phrase, lions under the throne, but wishes to establish the rule of law. When the US Supreme Court decided the famous Madison case, where it established the principle of judicial review, one of the issues it faced was of whether its order would be obeyed. The whole point of having courts is not just to have disputes decided, but decided in ways that can be implemented. The main power for implementation is the executive, and if the executive refuses to implement, the courts lose their utility. However, one of the aspects of the Memogate scandal is that the trail could lead all the way to the President. He is far from above suspicion. He was only able to avoid the rigour of prosecution through the immunity given by his office. The PPP seems to have bought into his claim that charges against him were politically motivated. However, he faced corruption charges before the NRO absolved him of them. It seems that the desire to protect the President has led to the defiance of the Supreme Courts order. If the Commission does not meet, then the investigation will not take place and the President will not be implicated. However, the consequences of the executive refusing to implement the Supreme Courts orders are, probably, worse than that of a President being found responsible for drafting the memo. It is an open invitation to having other parties disobey the courts. The feeling that even the powerful are restrained to remain within the bounds of laws, would disappear if the government itself refused to obey its orders. It is also no good the executive saying that it disagrees with the courts interpretation. Even if a court makes a misinterpretation, only that or a higher court can reverse that decision. That is why, the executive is supposed to have allowed the judiciary to decide in cases where citizens feel aggrieved. It is true that the executive is constantly engaged in obeying the law, because it is also attempting to rule by law. The judiciary sits in judgement over those decisions, because if anyone feels that the government official concerned has not interpreted the law correctly, he can go to the courts, where there is no question of the executive claiming that its interpretation was correct, or for it to refuse to reverse its decisions for this reason. It is understood that the executive will differ with the courts, especially where its decisions are reversed. However, its functionaries are bound to follow the courts in their view of what the law is. If the State does not rule by the law, it will rule by something arbitrary. That arbitrariness is usually based on the will of a person, and led to the famous Austinian formulation, that the command of the sovereign is law. The government may have well taken the decision out of pique at the decision made by court in the NRO review, in which it once again confirmed that that law had been overturned, and as a consequence, the cases in the Swiss courts against the President should be reopened. As the government, apparently, exists mainly to protect the President from the judicial consequences of his previous actions, it was, perhaps, inevitable that it tried to avoid implementing that process. It should be noted that the formation of a Commission, too, threatened to reveal things about the President that he would have preferred left concealed. It may well be that the Presidents legal team (and Babar Awan was known as a Presidents man, even when he was in the Cabinet) thought that the Commission was the right issue on which to take on the Supreme Court, but the fact is that doing so has meant that there has been created a curiosity about what the Commission might uncover that the President wishes to conceal. Is it that the President could be linked to the whole affair, as the 'ultimate author of the memo Mansoor Ijaz carried? Does the memo, which attempts to promise the USA everything it wants in Pakistan, represent the views of the President closely enough to justify such a linkage? If the President is not linked, the very fact of its being investigated whether or not he is, would create linkages in public perception that would be very unfortunate for him. And if he is linked, those linkages are the last thing he would want. However, the federal government did not take a politically correct decision to step up its confrontation over Memogate, even if it put the President at risk, because the memo scandal was overtaken by the Nato attack on a Pakistani checkpost, which led to 24 soldiers being killed. By this, it managed to give new life to the Memogate issue, which otherwise would have been completely buried by the attack. The Nato attack has allowed the whole government, including the President, the opportunity of making patriotic poses in public, while Memogate shows how patriotic its authors are. The Presidents belief that the charges against him are politically motivated is true in a perverse kind of way. As his, and earlier his wifes, stints in office meant that he could not be prosecuted, for abuse of power, only political opponents could prosecute, creating the impression of persecution. However, the linkage cannot be escaped. If Memogate involves the judiciary, the checkpost involves the military, both institutions that refused to subordinate themselves to the PPP. The President should ensure that, by obedience to the former, he should ensure that the nexus with the latter remains broken, for it is that nexus that provoked dismissals of elected governments. The writer is a veteran journalist and founding member as well as Executive Editor of TheNation. Email: maniazi@nation.com.pk