ISLAMABAD/KARACHI: The politico-legal soup the PPP has landed in just got thicker. Nudged along by Chief of Army Staff Ashfaq Parvez Kayani, President Asif Zardari and Prime Minister Yousaf Raza Gilani have promised to take all steps required under the law and the constitution necessary to reopen the Swiss cases.
Meanwhile, eminent lawyer Aitzaz Ahsan who happens to be a PPP leader, just joined the raucous chorus – both within the PPP and without – demanding the government implement the apex court’s December 16 verdict on the National Reconciliation Ordinance (NRO). And if this weren’t enough, the Supreme Court has set up a full bench to hear the 10 constitutional petitions challenging the 18th amendment. The five-member bench of the apex court, which had taken suo moto notice of the non-implementation of its NRO judgement, will resume hearing the case today in Islamabad.
At the heart of the case lies the reopening of National Accountability Bureau cases against top PPP leaders, including the cases instituted in Switzerland against co-chairman Zardari. At the last hearing, Attorney- General Anwarul Haq had quoted law secretary Aqil Mirza as having said that the Swiss cases were a closed chapter and would not be reopened. Shortly after, Mirza resigned citing health reasons. But because he was also quoted in The News as having said that this was not his opinion but that of the government, no one really bought the excuse.
Mirza was the fifth high-ranking government functionary – including NAB chief Naveed Ahsan and former AG Anwar Mansoor Khan – to have resigned since the court began hearing the case. While the government has insisted all along it respects the judgement of the court, it has been noticeably slow in implementing the verdict. PPP insiders say the influence of the hawkish elements – law minister Babar Awan, most prominently – is to be blamed. At the death anniversary of Zulfikar Ali Bhutto in Naudero, Awan famously declared that the grave of Benazir Bhutto would be put on trial “over [his] dead body”.
And at the time he resigned, the former AG held law minister Awan responsible for impeding the reopening of the cases. Awan and Co’s intransigence, say insiders, has led to a split within the party as well. Aitzaz Ahsan is just the latest to chime in. Talking to the media outside the Supreme Court on Wednesday, Ahsan said the government should write to the Swiss authorities for reopening the cases, although he did say it would be up to the Swiss authorities to reopen the cases as international law provides immunity to a head of the state.
After the COAS’ meeting with the president and the premier, senior PPP leader Farahnaz Ispahani told Express 24/7’s Quatrina Hosain that attorneygeneral Maulvi Anwarul Haq as well as the additional law secretary will present the government’s point of view today. But this, some say, is just how it shouldn’t have happened. “The best thing that happened after Pervez Musharraf was that the army was forced to scale back on its political role. By displaying such an confrontationist attitude, the government has invited the army back into the political sphere – just the way it did earlier by refusing to restore the judges deposed by Musharraf.”
And against this backdrop will play out the other politically controversial issue before the court: petitions against the 18th amendment. On April 28, the five-member bench led by Justice Nasirul Mulk asked Chief Justice Chaudhry to a larger bench to hearing the 10 petitions challenging some provisions of the 18th amendment. As the petitions continued to be filed in in the wake of the unanimous passage of the amendment in both houses of Parliament, PPP leaders – and a few from its allies – kept defending the supremacy of the Parliament and its right to change laws as they saw fit.
The pacifists kept saying the independence of the judiciary would not be compromised. But legal eagles insisted that even the Parliament couldn’t legislate against the spirit of the existing constitution. They argued the amendment would nullify the independence of the judiciary, a key guarantee available in the 1973 constitution. And then, to make PPP look even worse, the PML-N came out with a fullthroated defence of an independent judiciary. On Wednesday then, Chaudhry set up a full court consisting of all available judges of Supreme Court. The bench begin hearing the petitions from May 24.
The issues are simple: can a parliament which is not a constituent assembly and so, not charged with constitutionmaking, change the character of the constitution? And can the court strike down amendments that are against what it understands to be the spirit of the constitution? But analysts say the determination of these issues will reset the balance of power between state institutions and so, will reverberate in Pakistan’s body politic for a long time to come. (WITH ADDITIONAL REPORTING BY QAISER ZULFIQAR)
Published in the Express Tribune, May 13th, 2010.