Was it a judicial coup or a witch hunt against an elected prime minister? Is there a party you can take sides with in this case? Gillani is not a hero or a martyr in popular imagination. Yet, his lawyer, Aitzaz Ahsan, presented sound legal arguments in his defense in the contempt case.
My students struggle to identify the correct legal argument to form the moral, ethical basis of their view on the issue. But law is malleable, fallible, not absolute. Article 63 may be read in a way that permits Gillani's disqualification as prime minister. The Speaker of the House may be correct refusing referral to the Election Commission to call the shots on Gillani. (1) The Supreme Court calling a contempt case suo motu and then adjudicating on the merits in the same may reflect bias and violate due process. Opinions may vary on what is an internal matter of Parliament. Gillani may have been scapegoated for intriguing reasons; yet he has not been absolved on the merits anyway. The issue of presidential immunity may not be relevant to what the court asked Gillani to do -- withdraw the communication earlier made by the former Attorney-General, Malik Muhammad Qayyum to the Swiss authorities.
But rather than becoming intellectually mystified by legalese to the point of distraction, lets look at the larger political picture and how the public gains or loses in this debate.
The Supreme Court was perhaps just and fair in declaring the National Reconciliation Ordinance (NRO) void ab initio in their December 2009 Mobashir Hassan decision, PLD 2010 SC 265 - thus a) de-legitimizing military brokered deals in governance matters and b) putting culpable people back on trial and be held accountable in a country demoralized by corruption scandals. This decision could be the basis of good political reform, following an arduous struggle led by the lawyers for independence of the judiciary.
Their decision in Mobashir Hassan meant that no action taken or amnesty given under the NRO was recognized by the law. Thus, cases against all 8,041 bureaucrats and politicians, including Zardari, who were prematurely exonerated or released, could be reinstated. The court declared the then Attorney General Malik Qayyum's September 2008 letter to the Swiss authorities, asking them to withdraw the case against Zardari and others, ineffectual in the famous paragraph 178 of the NRO judgment.
Gillani's contempt was that he refused to refer the matter to the Swiss authorities. He maintained that Zardari is immune from prosecution; the same argument was later made vehemently by Aitzaz in court while defending him against contempt charges. The Supreme Court's response, in their June 2012 judgment, was that Swiss courts could decide the matter of presidential immunity for themselves, and Aitzaz could make his arguments there. Moreover, the obligation Gillani neglected involved people other than Zardari - and hence his conviction stands. (2)
The Swiss case against Zardari that forms the basis of this legal political drama is kickbacks he allegedly received when he awarded lucrative contracts to Coctena and SGS to the tune of 6% of a $131 million contract. (3) That is a lot of money. If returned to the people of Pakistan, it could be invested in social good. His trial is thus in the public interest. But there is a competing interest of allowing democratic rule to continue and ensure a semblance of stability. In addition, insistence that the case be reopened is possibly moot and futile. If Aitzaz's argument on the immunity is irrefutable, or at least strong, there will be no trial in Swiss courts until the expiration of Zardari's presidential term in 2013. Better to do it once and properly at a time when immunity will no longer shield him.
But that would imply that the judiciary has somehow acceded that its judgment declaring the NRO void will not be complied with until a later date - in the public interest of preserving the democratic rule of leaders who may have benefited from a reconciliation pact rendered illegal retrospectively.
Before their April 2012 decision against Gillani for contempt, the apex court inquired about the government's compliance with (rather flouting of) their 2009 order. In the Adnan Khawaja case, the court questioned his appointment as MD of the Oil and Gas Development Company Limited (OGDCL) against merit and promotion of Ahmed Riaz Sheikh as Additional Director, Federal Investigation Agency (FIA). (4)
This resulted in what some called political chaos. Newspaper headlines on the issue reported the series of Shakespearean twists that ensued between 2009 and 2012. One Attorney General resigned trying to push compliance of the 2009 decision. Babar Awan, the law minister played hookie to protect Zardari. The Court was slighted.
The crisis was compelling and newsworthy; it makes good law drama when a new event happens, most recently Gillani's sacking. Tremendous amounts of judicial, parliamentary, media resources are expended on it. But is this debate useful? How do the people of Pakistan weigh in and what is their larger interest? Accountability in corruption cases is in the public interest as is reopening of the cases of NRO beneficiaries. Having laundered money returned to public coffers is in the public interest. Respect for judicial decision making power, post lawyers' movement, is also in the public interest. Yet, derailing democracy is not. Having people pardoned by the NRO serve the remainder of their 4 to 7 year sentences may not be of direct value.
How should all these interests be weighed against each other? Is the judiciary and the parliament in an unresolvable dilemma? Have we made a khichri of the separation of powers doctrine? How do the citizens of Pakistan ensure that judicial time is spent in the preservation of their fundamental freedoms also guaranteed by the same constitution? How do we protect that criminals are duly prosecuted without compromising the efficient running of democratic governments? Is law for letter only, to exist in and of itself, or can we respect its spirit?
(1) Complete Text of Speaker, Fehmida Mirza's Ruling, http://www.geo.tv/GeoDetail.aspx?ID=50750
(2) Full May 2012 Decision Against Gillani, http://www.supremecourt.gov.pk/web/user_files/File/Crl.O.P.6of2012.pdf
(4) Adnan Khwaja v. The State, http://www.supremecourt.gov.pk/web/user_files/File/NROCaseDt.10.01.2012.pdf