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#3758, 21 November 2012
Pakistan: President versus Judiciary versus Military
Rana Banerji
Distinguished Fellow, IPCS
email: rbanerji49@gmail.com

General Kayani’s thinly veiled warning to the higher Judiciary issued in his 05 November 2012 speech to senior Army officers continues to elicit adverse civil society comments and determined ripostes from the Chief Justice himself. It has fuelled conspiracy theories among Pakistani political analysts that this may lead to possible postponement of elections to the National and Provincial Assemblies in March 2013. Are the institutions within Pakistan on the verge of a clash now? Is there a growing divide between the military and judiciary in particular?

Judiciary and the Military
On 15 November, Chief Justice Iftikhar Mohd Chaudhry convened an extraordinary, unscheduled full-bench session to assert that ‘as per prescribed principles enshrined in the Constitution, every organ of the state has to perform its duties and functions within the mandated sphere’ (an eerie reiteration of portions of Kayani’s 05 November admonition, but with a twist in its tail). The ‘superior judiciary’, Chaudhry’s press release added, ‘enjoys cross-cutting jurisdiction empowering it to carry out the role of oversight and ensure that no institution or department or authority may interfere in the domain of the other and further to check the unlawful or unauthorized or malafide act or exercise of authority’.

Last week, a larger bench of the Islamabad High Court accepted a petition (earlier deemed inadmissible) from Col. Inamur Rahim, formerly from the Army’s Legal Branch, challenging Gen Kayani’s extension as Army Chief in 2010. On 14 November the Islamabad High Court Bar Association and the District Bar, both considered supporters of Justice Chaudhry, passed a unanimous resolution demanding enquiry into business deals of Gen Kayani’s brother. The same day, Col (retd) Inam was roughed up by unknown assailants, raising memories of tactics familiarly used in the past by Pakistan’s ubiquitous agencies.

Meanwhile, talking to Express News TV anchor, Javed Chaudhry in his programme, ‘Kal Tak’ on 15 November, Malik Riaz, business tycoon who has brought up bribing allegations against Justice Chaudhry’s son, Arsalan questioned why investigations against the latter had been entrusted only to a single member Shoaib Suddle Commission of Inquiry, while other cases, including those against Army Generals were being conducted by multi-member institutional bodies like National Accountability Bureau (NAB). He claimed he would soon reveal damaging details of wealth amassed by Arsalan and video evidence, given to him by ‘others’, to substantiate these charges. Penning his weekly column in ‘The News’ (16 Nov), veteran journalist and Member of National Assembly, Ayaz Amir noted Malik Riaz’s renewed ‘bounce in his step’ and questioned, ‘who’s given him his vitamin shots?’

Judiciary and the President
While these shenanigans would have normally hugely amused President Zardari and his PPP cohorts, but right now they have enough headaches on their plate to worry about, some having been instigated by the superior Judiciary. The Lahore High Court recently ruled that holding both offices of Party President and President of Pakistan were ‘unmaintainable’ by law. It cited extensively observations supporting this definition of the President’s role and functions enumerated recently by the Supreme Court in the Asghar Khan judgement, which has also castigated the role played by former Army Chief, Gen (retd) Aslam Beg and ISI head, Lt. Gen(retd) Asad Durrani in funding the IJI against PPP during the 1990 elections.

Despite this ruling, Zardari went ahead with a very much ‘political’ Eid milan address in Malakwal, Mandi Bahauddin, Punjab (14 Nov) where he spoke in ‘broken’ Punjabi and tried to reassure the audience that elections would be held in time. Opposition leader, PML(N) leader Nawaz Sharif promptly demanded before Samaa TV that Zardari be asked to resign for violating the Supreme Court’s orders. A new phase of executive-judiciary confrontation may have been opened up with a review petition being filed under Art 188 of the Constitution in this regard, where the government will contend, the President's post is a political office, by virtue of its electoral college comprising MNAs, MPAs & Senators, holding that actions of President Ghulam Ishaq Khan as President in the Asghar Khan, Aslam Beg case were in his individual capacity and deeming recent observations of the Chief Justice as ‘based on assumed and hypothetical facts'.

The PPP is also facing unexpectedly strong criticism from its core Sindhi support bastion, for having conceded extraordinary powers to its alliance partner, MQM in the Local Bodies bill for Karachi and Hyderabad. Zardari may be forced to resort to some skilful backtracking and brinkmanship if Sindhi resentment builds up further on this account before the elections. 

The stalemate in Balochistan, where Chief Minister Aslam Raisani was able to obtain a vote of support in the Assembly in the face of a Supreme Court observation that his government had lost the writ to govern, and the persisting disorder in Karachi do not auger well to sustain any perception of a civilian government in control.

Zardari’s assurances of polls in time or reports of meetings held by Prime Mister Raja Pervez Ashraf with opposition leaders to find consensus on a Caretaker administration before elections do not inspire much confidence. Whether these developments provide a sufficient trigger to alter current civil society ennui about renewed Army intervention, even if sheathed through modality of a longer term ‘Caretaker' remains to be seen and still looks rather unlikely, given the mutual suspicions between the Judiciary, the Army leadership and the political executive.

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