As the date of August 27 approaches and the whole nation is agog at what becomes of Prime Minister Raja Pervaiz Ashraf, the question inevitably arises as why the instructions of the Supreme Court about the writing of a letter about the cases against President Asif Zardari are not being followed.One Prime Minister, Yousuf Raza Gilani, Raja Pervaiz’s predecessor, has already lost office, after having been convicted of contempt of court and then disqualified from the National Assembly. The President, who is also the head of the PPP, seems to be preparing for the sacrifice of another Prime Minister, and seems willing to see if the Supreme Court is willing to sacrifice a second Prime Minister.It should be clear that it is not a question of abstruse principles, of the President’s immunity or the right of Parliament to legislate, which is persuading the PPP to follow this course, but the desire to prevent the President bearing responsibility for his actions. It must be noted that the cases were not instituted for acts committed as President, nor were they instituted while he was President. They were withdrawn on a letter written by the Attorney General of a caretaker government.The principle of immunity is felt by the PPP to clash, and some feel that it is the reason why President Zardari obtained the office. However, his defenders do not feel that this is a letter that should not be written about a President. Indeed, those most naturally the strongest supporters of the President, the armed forces (whose Commander-in-Chief he is under the Constitution), have not only not rallied around him, but are accused by the PPP of being behind an ‘establishment conspiracy’ against him and the party.While the PPP might be upset over the desire of the Supreme Court to have the law followed, it does not seem to have paid enough attention to the fact that the court is not part of any grand conspiracy, but is not only surprised at having its orders disobeyed, but also at who is doing the disobeying: another organ of the state to which the court belongs, and the very organ which is responsible for ensuring the implementation of that court’s orders.It is interesting (though only at the theoretical level; practically it is frightening) that the court has a theory behind it, but the government does not have a voiced theory. The court believes that it has the right to interpret the Constitution, and that right is not so much given to it by the Constitution itself, as made obligatory. That means it cannot tolerate the propping up by the executive of any other authority that can offer an alternative interpretation, least of all the executive itself. Otherwise, the executive would always claim to be right, and the judiciary would not be able to act as a check on it, which is the main reason for its existence.The President’s supporters do not have a theory to contradict this, merely being able to take refuge behind the immunity clause. The control the PPP has over the legislature (which under the constitutional scheme gives it control of the executive) has limits, as shown by the Supreme Court’s striking down the court contempt amendment Parliament passed. Thus, it appears that the judiciary is being resented because it does not accept the PPP as a ‘vanguard party’, which should mean that it work to further its purposes, like the protection of its Chairman. In fact, the only theory opposing the Supreme Court’s that the PPP can bring forward is that of the vanguard party, which it thinks it should be. It is implicit in the PPP’s apparent belief that democracy means PPP rule. The PPP was successful as a socialist party only at the fag-end of socialism, and it was hobbled by India’s being in the Soviet camp, which meant the USSR was unwilling to help it. This helps explain the PPP’s traditional leaning towards India, a factor in its policy in government it has maintained. It also helps explain why the PPP is so suspicious of the military, which has inclined towards the USA. It is only in the 1980s that the PPP, under Benazir Bhutto, inclined towards the USA, only to have the USA back the Musharraf-era martial law. The PPP thus sees the military as an important rival for the favour of a power it is itself courting.As a vanguard party, the PPP is not so much an anti-establishment party, as a party that feels it should be at the head of the establishment, which should act as a vehicle for the perpetuation of PPP power. However, there are two factors working against this within the judiciary. First, its new-won independence. Vanguard parties cannot tolerate an independent judiciary, which must be as subordinate as the other organs of state. Second, its refusal to compromise on the rule of law. Vanguard parties also need the rule of law, because they want their judiciaries to be effective. An important external factor has been the collapse of the USSR, which means that there are not many examples of single-party states left. The best models for the PPP thus become the oldest parties of the West, rather than the few remaining one-party states like Cuba and Zimbabwe.An important factor is that while Gilani and Pervaiz are both seat-warmers, who have held office because the man the PPP really wants ruling, the heir of Benazir, Bilawal Bhutto Zardari, is too young, the judiciary comprises men who have got there because of initial elevations made on merit. In short, while the Prime Ministers owed their position primarily to the goodwill of the man against whom there are supposed to be cases reinstituted. The PPP contains political people, who believe that politics is the art of the possible. The court comprises men selected on merit, and inclined to take a very serious view of even the suspicion of corruption. The PPP head, on the other hand, has experience how this suspicion can be used for political persecution. Zardari goes to jail when the PPP is dismissed, when it comes to power, he has been the PM’s husband, now he is President.The question has not yet been answered: what harm does the President and the members of his legal team see in the reopening of the Swiss cases? It seems that one option that was on the table, is now off it; that the letter be written, but include a caveat that Zardari was President and enjoyed immunity under Pakistani law. However, its being aired was an indication that someone on the President’s legal team realised that the Supreme Court is not defied with impunity, and at least effort needed to be made to satisfy the court.Another piece of advice given to Raja Pervaiz has been that he need not present himself before the Supreme Court. The former Prime Minister suggested this, saying that appearing in court had not done him any good. It is bad enough to receive a notice for contempt of court. It is most unwise not to answer the summons, and if personal appearance is required, not to make it. Even a third-class magistrate treats such defiance as contempt in the face of the court, and it could bring an end to the case against Raja Pervaiz right there. However, while it must seem to Raja Pervaiz as of paramount interest whether he survives in office or not, he should realise that the President has a different purpose, if not necessarily a higher one, that of avoiding any letter writing. At this point, the only sensible way out would be fresh elections. Actually, this might suit the PPP, for the issue of whether the letters should be written, or why the Supreme Court should not be obeyed, would be a distraction from the issues on which elections are normally fought, and where the PPP has not done particularly well, like inflation, loadshedding, foreign policy and law and order.
The writer is a veteran journalist and founding member as well as Executive Editor of TheNation.Email: maniazi@nation.com.pk­