Prime Minister Yousuf Raza Gilani’s appearance in the Supreme Court is not without precedent in Pakistani history, Mian Nawaz Sharif, now  PML-N President, in his second term as Prime Minister, having appeared before the Supreme Court on a contempt notice. The personal exemption from appearance has not brought the case to an end, but has followed precedent. But there has been none of the workers’ dramatic appearance as last time. However, what was unprecedented in Mr Gilani’s case is that the contempt charge has come as a distraction from the memogate affair, and the second great confrontation in which his government finds itself engaged. There are two points to be noted about the peculiar circumstances in which Mr Gilani finds himself. First, the military and the judiciary combined in 1977 to overthrow the first PPP government, and hang the party’s founder and first Prime Minister, Zulfikar Ali Bhutto. Indeed, one of the cases before the Supreme Court is the presidential reference on the murder case in which he was hanged. It is a sign of the times that the President’s lawyer in that case, Dr Babar Awan, has had his licence to practise law suspended.
Another point to be noted is that, notwithstanding Mr Gilani’s protestations, the PPP has resented the fact that the judiciary and the military have not joined in the idea of a vanguard party leading the country to prosperity and progress. Because of this, the judiciary and the military stand in the way of PPP, though its purpose in neither of the cases is to establish itself as a vanguard party, but to protect a single individual. That individual is the President of Pakistan and the Co-Chairman of the PPP, Asif Zardari.
This attempt is to protect him where he has run afoul of these institutions. In the case of the judiciary, the crux of Mr Gilani’s failure to obey, which has led him into his current hot water, has been the government’s failure to write to the Swiss authorities about the President. In the memogate case, the government’s desire is to keep the investigation to the Parliamentary Committee on National Security - a body with a built-in PPP majority - and not allow the impartial investigation that will be conducted by the Commission of Chief Justices appointed by the Supreme Court. The work of the Commission has been ham-handedly hampered by the government, which has carefully leaked its thinking about its wish that star witness Mansoor Ijaz not testify to the Commission, and the means that could be adopted to stop him coming, ranging from refusing him a visa to registering a treason case against him. The purpose of all these manoeuvres are creating doubts that the allegations that the President sanctioned the fateful memo are true. That the memo contained material promising the USA much veto power over Pakistani security, and its nuclear programme, has made it likely that the author, as well as those who sanctioned the draft, would face high treason charges. President Zardari might be held responsible by the military, but ancillary issues have been joined. One is the issue of the Prime Minister having remarked that the COAS and the DG ISI did not behave according to the rules in filing their replies to the Supreme Court. This is clearly a major issue, for it has led to the Defence Secretary being sacked. As the Defence Secretary was a retired Lieutenant General, that has become a separate issue for the COAS to take notice, but the COAS bringing in the President on the issue, in his attempt to have the Prime Minister take back his remarks, shows how seriously the matter is being taken.
It should not be underestimated how serious a danger the Prime Minister was in. The issuing of a show cause notice by any court, leave alone the Supreme Court, is because the court has in its mind convicted the contemner. The notice is issued only because the court wishes to see if there might be any other construction placed on the contemner’s behaviour. There are two major areas of contempt: Scandalising the court, usually by making allegations against it or any of its judges, or disobeying its orders. Here, the court has not been scandalised, with the Prime Minister having always made the most fulsome expressions of respect. Its orders were not being obeyed. Such a notice is normally issued in response to an application by an interested party, after the court has made out that there has, indeed, been a refusal to obey. No court, let alone the Supreme Court, looks on disobedience of its orders with favour, as obedience of its orders is the only means it has of justifying its existence.
A court is there to adjudicate disputes and it can only do so if the decisions it makes are enforced by the executive. If it is rendered uncertain about whether its decisions are obeyed or not, it will be unable to enforce the rule of law, which it has an intrinsic interest in enforcing. It is for that reason that dictators try and take control of the judiciary, in their search for legitimacy. However, as has been shown by Pakistani history, this compromising of the judicial function, where exception is made to the rule of law, prevents the public from granting legitimacy. Politicians seek legitimacy in their being elected, and only hold to the rule of law because they make the laws, and because the concept of the rule of law means their rule, not of any adventurer strong enough to take over. Therefore, as the Prime Minister indicated, politicians support the rule of law, and undermine it only at their own peril.
However, where elections give politicians control over both legislative and executive branches, the military, within the executive, in Pakistan, wants to have a special place, with a veto over defence and foreign policy. It is often said about the military that it represents another medium of modernisation. As that too is one of the roles of the PPP, there is a basic rivalry at work. As the PPP has not had itself backed by either the judiciary or the military, it is willing to take on both of them.
It would seem that the PPP would avoid a confrontation with both the judiciary and the military, but it should be kept in mind that both were involved in the two dismissals of PPP governments after the Zia martial law. The dismissals were by the President, but they were both upheld by the Supreme Court, and both were supported by the military. However, the PPP should have seen a shifting of the paradigm in the earlier presidential dismissal of the Nawaz government, in which the Supreme Court overturned the presidential decision. The court may be seen as trying for the rule of law, no matter what the law, or how unpopular it might be. Similarly, the military on all occasions, was merely obeying the lawfully constituted authority, the President. Neither the judiciary nor the military accept the party as any kind of authority. Unfortunately, the present government sees the party as above the State, and all forces must accept its paramountcy. If the judiciary and the military fall in line, it will be the turn of political forces.
    The writer is a veteran journalist and founding member as well as Executive Editor of TheNation.
    Email: maniazi@nation.com.pk