Analysis
In 2003, Zardari and former Prime Minister Benazir Bhutto were convicted by a Geneva court for laundering 15 million dollars. They appealed and the case was set aside following passage in 2007 of the National Reconciliation Ordinance (NRO), which granted amnesty to corruption-tainted politicians (including Zardari). However, in 2009, the NRO was nullified and the Supreme Court ordered the government to write to Swiss courts to reinstate these cases by today. This is the principal corruption case underlying the Supreme Court's current confrontation with Zardari (see PAKISTAN: Risk grows of a 'slow-motion' coup - January 12, 2012).
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Judicial inquiries against Zardari and the government will test the loyalty of the PPP's coalition partners
By not complying with the order, the government sets a defiant tone, signaling that Zardari is unwilling to concede too much, too quickly to his opponents in the army and judiciary:
- Under Article 248 of the Constitution, an incumbent president has immunity from prosecution.
- Zardari's lawyers claim that the Geneva Convention offers him similar protection in Swiss courts. They may be correct, since in 2010, Geneva canton's Attorney General Daniel Zappelli endorsed Zardari's view that a foreign head of state enjoys "absolute immunity"' in Swiss courts. However, Zappelli, who in 2008 released 60 million dollars of Zardari's assets frozen in Swiss accounts, leaves office in March.
However, the government is fearful of blatantly defying the Supreme Court: contempt-of-court proceedings would seriously undermine government authority and could lead the Supreme Court to disqualify Zardari and Gilani from contesting parliamentary elections for five years under Article 62 of the Constitution.
Meanwhile, coalition allies, the Muttahida Quami Movement, Awami National Party and Pakistan Muslim League-Quaid, have urged the government to avoid a confrontation with the Court, while watering down the confidence resolution they are willing to support.
Supreme Court pressure
On January 10, a Supreme Court panel chaired by Justice Asif Saeed Khosa delineated six options the judiciary could pursue if the government failed to comply with its orders, including:
- disqualification of Zardari and Gilani from office and contempt-of-court proceedings;
- appointment of a commission to execute the NRO judgment directly (under powers of the 1980 Supreme Court Rules); and
- action against the chairman of the National Accountability Bureau.
The Court may hope to bypass Zardari's immunity by invalidating his oath of office, using provisions inserted into Article 62 by former dictator Zia-ul-Haq (to appease religious parties) requiring office-holders to be "honest" and "righteous". Such a move is likely to be more successful in embarrassing Zardari politically and weakening the loyalty of his coalition partners. Ousting Gilani for contempt would further both these ends and may well be simpler because compared with the president, the prime minister has less constitutional protection from prosecution. He has already reportedly offered to step down.
Military's role
The military appears to have played an important, if covert, role in fuelling confrontations between the government and Supreme Court. Notably, it succeeded in encouraging the Court to investigate the 'memogate' scandal, against the government's contention that the scandal should be investigated by a parliamentary panel. Moreover, it is likely to facilitate Mansoor Ijaz's deposition before the Court on or after January 25, and arrange his security in Pakistan. A Pakistani-US citizen, Ijaz's allegations lie at the root of the scandal. However, despite their shared disdain for Zardari, the Court remains suspicious of becoming too closely entangled with the army.
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The military will refrain from acting publicly against the government
Confident that the government is too weak to remove him from office, Kayani is likely to exploit the military's popularity with a series of calculated, high-profile political skirmishes with Gilani. Moreover, it will choose to keep its efforts to oust Zardari indirect and out of public view.
Opposition parties
Zardari's political rivals have thrown their weight behind the Court, with the main opposition PML-N asking for "immediate implementation" of Supreme Court Orders and Imran Khan's ascendant PTI warning the government against "moves against the rule of law". The PTI could take advantage of judicial attacks on the PPP-led government to organise public protest in coming months (see PAKISTAN: Imran's ascent alters political balance - November 2, 2011).
Zardari's options
Zardari still believes he can withstand pressure from the army and judiciary long enough to win a near-majority in Senate elections in March, secure a fifth budget full of electoral benefits in June, establish a caretaker arrangement favouring him and ensure his re-election in the next national elections.
He is most likely to play a waiting game: Pakistan Peoples Party strategists are aware that although tough orders from the Supreme Court would bring political embarrassment, their implementation would be difficult without military enforcement. The judiciary is reluctant to invite the military to do so on its behalf.
A less likely alternative for PPP strategists could include calling snap national elections (otherwise not due until 2013), for, even in a worst-case scenario, the party would likely win a near-majority in the Senate elections and approximately 50 (of 342) seats in the next national elections. Such results would allow the PPP to serve as opposition to an army-reconciled Sharif or an untested Imran Khan, with a likely chance of returning to power in three to five years.
The Court has increased pressure on the government by giving it until February 23 to compile electoral rolls, but the Election Commission says it cannot complete the task before May. Such constraints could help delay elections until after June.
In the least likely scenario, the PPP could actively invite a coup and project themselves as martyrs for democracy. Kayani, though, is too cautious to play into such a strategy.
Zardari's remaining option could be to opt for a cross-party national government, though he has shown little appetite for grand coalition since Sharif withdrew from the cabinet in May 2008.
