Legality of supreme court's move to unseat democratically elected government before its term is highly debatable
The national reconciliation ordinance was a dirty deal, brokered by the Bush administration, between Pakistan's then military ruler Pervez Musharraf and Benazir Bhutto. It allowed her to return from exile and take part in elections in exchange for the dropping of corruption charges against her husband Asif Ali Zardari and other officials. The constitutional court was right to declare it unconstitutional two years later in 2009 and, it could be argued, equally right to demand the current government's full implementation of the court's decision.
The court is trying to do this by requiring the serving prime minister, Yousaf Raza Gilani, to write to the Swiss authorities asking them to reopen a corruption inquiry against Mr Zardari. This the prime minister refuses to do on the grounds that Mr Zardari, who is now president, enjoys executive immunity from prosecution both inside and outside the country. The immunity the president enjoys while in office has not been the issue in the court, only Mr Gilani's failure to comply with an unimplementable order. Yesterday he was charged with contempt, a move which could lead to his dismissal from office. If the legality of the court's move is debatable, the politics of it are extremely murky.
First the timing. Having sat on this issue for three years, the supreme court are only now moving against Mr Gilani, who has become Pakistan's longest serving prime minister. He was also the only one to be have been voted unanimously in power by parliament. Why now? With elections coming up in March 2013 which the leading party in the coalition, the Pakistan People's Party, could very well win, this is an attempt to stop the civilian government from consolidating its power. In past eras this would have been done by tanks and generals. Today, it is been done by using supreme court justices as proxies. That may be called progress, but the manoeuvre to unseat a democratically elected government before its term is up remains the same.
Further, no domestic proceedings are being brought against President Zardari. They want a foreign government to do their work for them. Nor is any politician in Pakistan in a rush to challenge the rule of the executive immunity from prosecution for the simple reason that in power they would be sure to benefit from it as well. Once Mr Zardari loses office, fairly and at an election, he will lose that immunity and it is entirely right that he should have to account for allegations that he received kickbacks in a court of law. But that is not the purpose of yesterday's contempt hearing. It is to sow political chaos and Mr Gilani is right to resist it. If he is convicted and forced from office, he will become a martyr in his party's eyes. This will only propel his career forward.