If a country’s Prime Minister has to present himself before the Supreme Court, and that too in answer to a contempt notice, it cannot be a cause of celebration. And if that Prime Minister’s survival in office depends on that appearance, then the system of governance, itself, is at fault.

Monday’s appearance, the first by Prime Minister Raja Pervaiz Ashraf, saw the government attempt to shift the debate, from the issue before the court (whether or not the Prime Minister would write to the Swiss authorities about the President) to whether the Prime Minister would appear before it. As it is, he did appear, but the very debate was an indication for future Prime Ministers.

There appears now to be a situation where the most important judicial organ of state, the Supreme Court, is now in open conflict with the head of state, the President, who refuses to accept that the rule of law includes him. The court is not willing to accept that anyone is above the law, which the President feels he should be.

Though it is the Prime Minister, who took a postponement on Monday to September 18 and promised to find a way out, it was the court that exercised restraint by not only leaving the PM undisturbed in office, but also giving him the option of not writing the letter himself, but of designating someone else to do so on his behalf.

This is something of a poisoned chalice, for while it does clear the Prime Minister of the charge of writing any letter, it does not meet the President’s need - that no letter at all be written. Why does he not want it written? That question has again come up for the nation, and the President’s supporters’ argument that writing the letter is meaningless because the cases are dead, does not justify his sacrifice of a Prime Minister and his willingness to sacrifice another. Loosely related is what happens if the Prime Minister has not written by his next appearance. This will be an even greater defiance of the court, which does not require the PM to write personally, but is willing to have someone else write.

One of the arguments being made for the PM’s non-appearance, that he enjoyed immunity, gave an indication of why the President’s insistence is so dangerous. If the Prime Minister is going to rely on immunity, to claim the ouster of the Supreme Court’s orders from his actions, how will any lesser official be stopped? And not just elected officials, but permanent officials, like departmental secretaries and district officials. The next step would be for one provincial official to make the claim, and then the floodgates would be opened for every Patwari and SHO in the land to follow suit.

It should be remembered that the executive makes the very first interpretation of the Constitution in its daily work. It takes, according to the minds of its officials, decisions according to the law, which it judges in accordance with the Constitution. Only if a citizen feels aggrieved, and if he thinks he has a case, he goes to the judiciary. First a judge, then various courts, including ultimately the Supreme Court, pronounce their judgement. They will either agree with the citizen, in which case they will tell the government to change its decision, or agree with the government, and tell the citizen that he has no reason for grievance, and must obey the order. Someone must obey the court, and there is a disagreement on the interpretation of the Constitution only when the judicial arm disagrees with the executive. If anyone thinks the judiciary has got it wrong, he is free to campaign for a change in the law, which is to be passed by the legislature, and before which the campaign is to be made.

Government servants, whether elected or permanent, believe they have acted according to the law. However, the judiciary has been given the power to second-guess them, because they are also men and thus liable to make mistakes. The judiciary also consists of men, but the recourse to their mistakes is not to put up one’s own interpretation, as the government has been doing. This path leads to all government servants claiming their right to put forward their own interpretation, and insist that it is the correct one.

That the President might be willing to have a letter written maybe because he realises that the Supreme Court cannot be defied indefinitely. One possibility is that the government will have to make way for a caretaker government, which will hold elections early next year, and the caretaker PM will write the required letter, which he will do, not being beholden to the President for the office. The President will, therefore, probably prefer to have the letter written by a government he controls, so that it can be so worded as to do the least harm.

This presupposes that he is willing to put the Constitution ahead of himself. It also seems that the President might have realised that, having sacked one Prime Minister for not having written to the Swiss authorities, it cannot let off another Prime Minister who defies it. With hindsight, it becomes apparent that the Supreme Court opted to disqualify the Prime Minister with perhaps more reluctance than he was sacrificed. This is so because the Supreme Court judges realise, perhaps more than the President, how heavy a cost the country has had to pay. However, the court cannot accept this defiance from the highest levels of government, unless it is willing to accept them from the lower ones.

There is one situation in which the Supreme Court might again be made part of the establishment consensus that it has departed from. It must be recognised that the present situation would not have occurred if the judiciary had viewed itself, as it had been trained to do during the British Raj, as an integral component of government, meant to serve two functions; to keep government servants acting according to law, and providing legal cover where ‘reasons of state’ made it desirable to act beyond the limits of the law.

However, as the judiciary now regards itself as sworn to uphold the rule of law, it cannot perform that role. That is an unpleasant surprise for the PPP, which still remembers fondly the era of its founder, Zulfikar Ali Bhutto, who himself learnt his politics in an era when the judiciary tried to promote the best interests of the government. If the PPP fits itself into a paradigm where none of its office bearers, particularly its Chairman, did not claim to be above the law, it can escape the situation.

As things stand, the only way out is for the government to appeal to the country. Besides, if the President was to ask the caretaker government not to write the letter because that was the prerogative of the elected government, he would have a better hope of being listened to. As things stand, with one PM removed, a second surviving from one court appearance to the next, and the fate of future ones uncertain, it is the country which is suffering, not the President or the Prime Minister.

 The writer is a veteran journalist and founding member as well as Executive Editor of TheNation.    Email: maniazi@nation.com.pk­