Today is a critical day for the government. The short order by the five-member bench on 10 January did not contain a judgement and, perhaps, unprecedented in world judicial history gave six options to a larger seven-member bench that will hear the case today headed by Justice Nasirul Mulk. In other words, the five-member bench not only passed on the proverbial buck to a larger bench but also formulated options to be considered by the larger bench.
In the meantime, the resolution tabled in the National Assembly on Friday is expected for passage today, a delay granted to the opposition, leading many to conclude that either his departure from the NA was to gain time (not known when he left the assembly) or else it was an abandonment of the leadership role on important matters that Chaudhry Nisar has been known for in the past. Be that as it may, the resolution itself is too generic to convince anyone, even die-hard jiyalas that it is in support of the President and the Prime Minister. Democracy is mentioned six times, with no mention of any political party or personality though there is one reference to 'political leadership', again in generic terms. There is mention of the 'triochotomy of powers' that must 'be respected' however no specifics were included. What is surprising is that even this toothless resolution requires, as per MQM a key government ally, consultations with the party's legal eagles. Why the government opted to go the resolution route in spite of its final content is baffling but there have been several political decisions taken by the PPP high command that remain baffling as they reflect a failure to gauge the mood of the public as well as the parliament, inclusive of their allies. The resolution in its current state is not likely to raise concerns in any quarters and therefore maybe passed. The danger, jiayalas maintain, lies in the realm of judicial proceedings.
It is not obligatory on the seven member larger bench to stick to the six options proposed by the five-member bench, however two appear to be in response to the President's interview in which he categorically stated that his party will not implement the decision with respect to writing a letter to the Swiss courts. The option does not mention the Swiss case though jiyalas maintain that the option to declare the Prime Minister and the President disqualified from holding office for breach of oath is no doubt rooted in a statement made by the President during his ill-advised interview. The oath of the President and Prime Minister stipulates that the incumbent will discharge his duties "in accordance with the Constitution of Islamic Republic of Pakistan and the law, and always in the interest of sovereignty, integrity, solidarity, well-being and prosperity of Pakistan." Supporters of the judicial order maintain that the word prima facie was used and reflects judicial restraint.
The second related option is to initiate contempt proceedings against the executive branch that is technically responsible for taking action on the court's verdicts namely the Prime Minister, Law Minister and Law Secretary for failing to implement the NRO judgement. This option takes account of the prevailing constitution, which lays the onus of all executive decisions on the Prime Minister and not on the President who, as is well known, is the real decision-maker.
The third option is hardly likely to give any degree of comfort to those who want the NRO decision to be implemented with particular reference to the President's alleged involvement in the Swiss cases as it proposes appointing a commission to execute the relevant part of NRO under Article 187. The article stipulates that "the Supreme Court shall have the power to issue such directions, orders or decrees as may be necessary for doing complete justice in any case or matter pending before it, including an order for the purpose of securing the attendance of any person or the discovery or production of any document."
The fourth option provides an opportunity to the President to claim immunity under Article 248. However, without doubt, this option would not be invoked by the PPP given that the interpretation of Article 248 with respect to the nature and extent of the President's immunity also resides with the court.
The fifth option is to lay the entire blame on Chairman National Accountability Bureau. The cases mentioned were those of the appointment of a matriculate Adnan Khwaja as head of OGDCL (which can be laid squarely on the doorstep of the Prime Minister) and the promotion of Ahmed Riaz Sheikh as Additional Director FIA. The FIA was busy over the weekend arresting those implicated in various cases on which action was not taken, however, the ones who reportedly provided guidance to the FIA remained in the backseat.
The sixth option to hold general elections appeared to be in line with what the PPP leadership has been claiming all along: that it came to power not because of some charity or verdict but because the people of this country voted it to power. However the timing does not suit the PPP and ideally it will try to extend the passage of a judgement by the larger bench till after the 2 March when Senate elections are to be held. The problem would be if the larger bench comes up with a judgement with a clear deadline for implementation well before the Senate elections.
Be that as it may, given that the post-Benazir Bhutto PPP has invariably backed down 180 degrees after an initial confrontational stance based on its threat perception, chances are that the party leadership may conform in letter to the court verdicts though not in spirit if past precedence is anything to go by. In addition it would call for earlier general elections.
The government has also concurrently taken on the establishment. Unlike the government there are few leaks from the army and it is therefore not clear if the army's mindset (to borrow a phrase from the President) has altered in any way. Be that as it may, two ISPR press releases need to be noted: the first stated that the Chief of Army Staff (COAS) only inquired after the health of the President recovering from a mild stroke in Dubai and the second this Wednesday past, warning of consequences to the country by statements made by the Prime Minister. Meanwhile it was noted that the commanders held a marathon meeting on Thursday.
However there is general agreement that military adventurism is not on the cards. There are some analysts who maintain that judicial activism or military adventurism may provide the PPP with the necessary fodder to go to the electorate and claim victimisation - an election strategy that provides the party the only chance of winning premised on its appallingly dismal performance on all other fronts. However this strategy may not succeed for two major reasons. First of all, if elections are held within three months then it is unlikely that the people would focus on the party being victimised as opposed to the people themselves being the victims of load and gas shedding, inflation and unemployment. This assessment would not be applicable to die-hard jiyalas and it is a foregone conclusion that the PPP would win at least 90 to 100 seats in the elections. However while President Zardari clearly does not have the charisma of the Bhuttos (his strength is in one on one negotiations) his children would certainly campaign for the party. There is of course some talk of Fatima Bhutto being used to offset the impact of the Bhutto Zardaris, however, time will tell if this will come to pass. And second and equally pertinently, the establishment has played a traditional role in our politics. To aver otherwise is simply not credible and it is highly unlikely that the establishment would support the current dispensation.
Thus battle lines appear to have been drawn, yet they are not yet irrevocable with many third parties trying to ease tensions. However, it is not yet clear whether a workable compromise can be agreed given the high stakes all round.