The Morphing Pakistani Democracy

Pakistan currently is swaying on the edge of a chasm. It is beleaguered by a multi-dimensional clash of interests between nations three major pillars the democratically elected Civilian Government, Pakistans Army and Pakistans Supreme Court. All of them are locked in a bull headed clash with each other. Historically, resolution of a dissension between Pakistani army and democratically elected civil governments takes the form of a bloodless coup with the Army incumbent declaring martial law and announcing himself as the head of the state. This time, yet again, Pakistans nascent democracy seems to be in jeopardy.

The National Reconciliation Ordinance (NRO)

The geneses of the present crisis in Pakistan can be traced to its former President, General (Retd) Pervez Musharraf. Pervez Musharraf, during his rule promulgated the National Reconciliation Ordinance (NRO) on October 5, 2007. It granted amnesty to politicians, political workers and bureaucrats accused of corruption, embezzlement, money-laundering, murder and terrorism between 1st January 1986 and October 12th 1999 the period between two past martial law regimes in Pakistan. Musharraf claimed the NRO essential toward building of a reconciliatory theme in the political arena and for the removal of politically motivated cases. Musharraf asserted that such cases had been in the courts for a decade without a judgement. This hampered political progress of virtually all political parties in Pakistan. It is widely held that the actual act was a means to allow the return of former Late Prime Minister Benazir Bhutto to Pakistan without the threat of pending corruption cases. Ostensibly the move had US-backing and was part of a power sharing deal with Benazir Bhutto. The Chief Justice of Pakistan, Iftikhar Muhammad Chaudhry, suspended this ordinance on October 12, 2007. But he was soon dismissed and Musharraf abrogated the constitution. On November 3, 2007 Musharraf proclaimed emergency. The new Chief Justice, Abdul Hameed Dogar subsequently revived this amnesty order on February 27, 2008. Benazir was shortly assassinated in a bomb and gun attack in December 2007. Late Benazir Bhuttos widower Asif Ali Zardari took over her party and was elected as the president. Some important beneficiaries of the NROs include, Asif Ali Zardari, Hakim Ali Zardari, Fazal-ur-Rehman (politician), Altaf Hussain , Rehman Malik ,Hussain Haqqani , Chaudhary Shujaat Hussein, and Brig Imtiaz Ahmad. On December 16, 2009, the current Chief Justice Iftikhar Muhammad Chaudhry, pronounced the ordinance null and void. The Supreme Court (SC) also asked all the cases disposed of because of the controversial ordinance to be revived as of Oct 5, 2007 position. Due to the opposition of several major parties attempts to propose the NRO in the National Assembly failed. In November 2009 on the orders of the PM Yusuf Raza Gilani the list of the NRO beneficiaries was officially released. This list contained names of 8,401 beneficiaries, most of whom were bureaucrats.

The SC has repeatedly asked the Pakistans Peoples Party (PPP) government to open graft cases against President Zardari. Also the SC has maintained that the government has to go through a judicial process to claim any immunity. The government has been dragging its feet on the issue arguing that the president enjoys immunity as the head of the state. SC even went to the extent of calling PM Yousaf Raza Gilani "dishonest''. It warned him of disqualification if he did not open graft cases against the president. The Pakistans Peoples Party (PPP} has given the issue an emotional twist, saying it is tantamount to trying "Benazir's grave''. The court in its January 10 order cautioned that it could disqualify both the president and the prime minister for disobeying its orders. Giving six options, the court questioned why any of stated options should not be exercised. Under the first option, the court may hand down a declaration in terms of Article 62(1f) of the constitution that could affect prime ministers qualification to be a member of parliament. PPP co-chairperson (President Asif Ali Zardari) and the law minister also fell in the same category. By the second option, the court could initiate contempt proceedings against the prime minister, the law minister and the secretary law for persistently resisting implementing its directions on the NRO judgement. This could also lead to disqualification from being elected or chosen as the Member of Parliament. By the third option, the court may appoint an agency to execute relevant parts of the NRO judgement. According to fourth option, the court may provide an opportunity to any affected person to be heard before exercise of any of these options. As this option referred to the presidents immunity, it could be interpreted as an opportunity for the court to discuss the legal aspects of the immunity enjoyed by the president.

The Memogate Scandal

Most certainly the American extermination of Osama bin Laden on 2 May 2011 in the stealth raid at Abbottabad, Pakistan prompted the current bedlam in Pakistan. The Abbottabad raid evoked a public and media debate of Pakistan Armys complicity in Osamas presence in the military cantonment of Abbottabad a stones throw from its premier military establishment. It even kindled misgiving about Armys competence towards the nations sovereignty. The diminishment of Pakistan Armys military stranglehold over Pakistan can be tagged to the 2007 massive civilian protest and demonstrations in defiance of Pervez Musharrafs dismissal of Pakistans Chief Justice Chaudhry. They manifested the first stirrings of democracy and countrys disenchantment with Pakistani Armys rule. Osamas extermination in Pakistans own back yard deeply dented Pakistan Armys professional image. However the PPP government stood stolidly and stoutly behind the army. It even put a pro-Army spin on the event by securing a unanimous joint parliamentary declaration against Americas violation of Pakistans sovereignty. In fact the Zardari regime gave a three year extension to Army Chief General Kayani and two year extensions to Lt Gen Shuja Pasha the Director General ISI. Pakistans Memogate refer to the series of events in Pakistan which flags the public expos of a bitter struggle for supremacy between PPP Government, SC and Army. Memogate appeared in October/November 2011 and provided the Pakistan Army a heaven-sent opportunity to retrieve its

domestic image on the plea that President Zardari and erstwhile Pak Ambassador to USA had conspired to discredit the Pakistan Armys reputation. This amounted to national treason. Pakistan Army Chief and DG ISI Lt General Pasha alleged that Pakistans President Zardari in collusion with Hussein Haqqani the Pakistani Ambassador in USA, had forwarded a secret Memo to the US Chief of Joint Staff seeking American help to dissuade the Pakistan Army from indulging in a military coup against the civilian government. The memo was alleged to have been drafted by Haqqani at the behest of President Asif Ali Zardari. Mansoor Ijaz a US citizen, allegedly carried the memorandum purportedly given to him by Ambassador Haqqani and gave it to the US military chief Admiral Mike Mullen a week after Osama's death and outlined a plan of replacing the current Pakistani military leadership with the help of the US. Mullen initially denied knowledge of the memo but later changed his statement, saying he knew of the memo but thought nothing of it as nothing about the letter had the authority of the Pakistani government. Husain Haqqani initially denied the existence and authorship of the memo in question. On October 10, 2011, Mansoor Ijaz published an opinion piece in Londons Financial Times in which he admitted that he had indeed acted as a private channel to communicate sensitive information to Admiral Mike Mullen and backed his claim with a series of Blackberry Messenger messages between him and Haqqani. Husain Haqqani refuted the BlackBerry Messenger email chain that Mansoor Ijaz made public by stating that the message were a likely forgery. On November 17, 2011, the contents of the memorandum were made public on the Foreign Policys website. President Asif Ali Zardari termed the allegations as "a conspiracy against the Zardari government" further stating that he did not need intermediaries to convey messages. On November 22, 2011, an official meeting took place at the Prime Minister House in Islamabad between President Asif Ali Zardari, Prime Minister Yousaf Raza Gillani, Chief of Army Staff Ashfaq Parvez Kayani, Director General of ISI Ahmad Shuja Pasha, and Ambassador Haqqani over the affairs of the alleged memorandum. Soon after, Haqqani tendered his resignation, which was duly accepted by the prime minister. In response to a petition filed by a group of opposition politicians the Supreme Court decided to set up a three-judge commission to investigate the memo scandal. The three-member Judicial Commission issued notices to all parties linked with the memo scandal including President Asif Ali Zardari, Chief of Army Staff General Ashfaq Pervez Kayani, ISI DG Ahmed Shuja Pasha and former US National Security Advisor James Jones to clarify their position regarding the alleged memo. The court call upon Pakistan's attorney general, Anwarul Haq, to also confirm the authenticity of a series of Blackberry messages which Ijaz submitted to back up his assertions against the former envoy. The PPP government on its part has suggested that its opponents on the Supreme Court, in the military and in the political opposition are using the scandal to try to topple the country's leadership. The PPP government asserted that a court probe is needless as parliament was the more appropriate forum and was already looking into the matter. The army has denied it ever intended to carry out a coup and was outraged by the memo and supported the Supreme Court's investigation.

The former US national security adviser, Gen. James Jones, who acted as an intermediary between Ijaz and Mullen, in a sworn affidavit delivered to the court said that he had no reason to believe that Haqqani had anything to do with the memo. On 9 Jan talking to a China-based newspaper Peoples Daily when the Army Chief was on an official visit to China, Prime Minister Syed Yousuf Raza Gilani said that Chief of the Army Staff (COAS) General Ashfaq Parvez Kayani and Inter-Services Intelligence (ISI) Director General Lieutenant General Ahmed Shuja Pasha had submitted their respective reply to the Supreme Court (SC) without the consent of the government in Memogate scandal case. He asserted that the reaction from any government institution without the sanction of the government is unconstitutional and unlawful. The army chief called on President Asif Ali Zardari for rare face-to-face talks. Source said that the army chief complained to the president about the prime ministers statements, and said they needed to be either clarified or withdrawn. Armys reply through Pakistans Inter Services Public Relations (ISPR) on 11 Jan stated that allegations levelled by Prime Minister against Army Chief and DG ISI could have very serious ramifications with potentially grievous consequences for the country. This raised the spectre of an impending military coup. Military high commands appointment of Brigadier Sarfaraz Ali as commander of the 111 Brigade, infamous for use in past military coups did not help matters. The Army insisted that the replies to the directly served SC notices were sent to the Ministry of Defence for onward submission to the Honourable Supreme Court, through Attorney General (Law Ministry). It also categorically stated that COAS and DG ISI in their response to the Honourable Supreme Court were obliged to state facts as known to them, on the Memo Issue. A letter was also dispatched to the Attorney General of Pakistan and the Honourable Supreme Court of Pakistan informing that the replies have been submitted to the Ministry of Defence. The army demanded that the prime ministers statements, criticising it, be clarified or withdrawn. Prime Minister Gilani sacked Secretary Defence Lt-Gen (retd) Naeem Khalid Lodhi. Prime Minister office claimed that Lodhi was fired for gross misconduct and illegal action which created misunderstanding between state institutions. He has been replaced by a Gilani man. Gilanis office also denied reports about prime minister having called the British High Commissioner in Islamabad, expressing concerns that the army might be about to mount a coup, and asking for London to support the government. Addressing the meeting of the Defence Committee of the Cabinet (DCC), held at the Prime Ministers House Prime Minister Yousaf Raza Gilani has signalled signs of rapprochement towards army. Addressing the participants, the PM said that it was his governments policy to allow and enable all state institutions to play their role in their respective domains, to bring forth the best in promoting Pakistans national interest. The PM said the armed forces were a pillar of the nations strength. The nation applauds their heroic services in the defence of the motherland,

For his failure to comply with the court order on NRO, the Supreme Court summoned Gilani to appear before it for contempt of Court. Gilani appeared on the appointed date, January 1, with his lawyer Aitzaz Ahsan, another PPP lawyer. Gilani argued that under the Art. 248 of the constitution,

Zardari enjoyed immunity during his tenure as President and, therefore, there was no cause for any action by him as Prime Minister. The SC bench exempted Gilani from further personal appearance, but directed his lawyer to present his case before the bench on February1. The situation in Pakistan fluctuates on a daily basis; this makes drawing any definite conclusion about how democracy in Pakistan will ultimately morph very difficult. However based on the course of event some extrapolations can be made: The court will hear the arguments on February 2, and give a judgement on Article 248. This will not only be an argument on Article 248 but also the power of the court to nullify the NRO. Future of implementation of graft cases and individuals claiming immunity under the NRO will become transparent. This will probably set the tone for an independent and powerful judiciary. President Zardari is still to reply to the SC notice in the Memogate. The investigations of Memogate case may linger and find it difficult to conclusively prove any links of it with President Zardari in a court of law. A lot will depend on Blackberry interaction between Haqqani and Ijaz. If Zardari gets temporary relief on grounds of immunity till the end of his tenure from the SC, other political parties like Imran Khans Tehrik-e-Insaf Pakistan and PML (N) may take to the streets. That may bring the election closer. With an activist and assertive Supreme Court judiciary, a growing and well educated middle class, active Pakistani media channels and Americas disillusionment with Pakistan Army, military coup by the Pakistan Army in the future is not going to be a cakewalk as in yonder years. As of now army has indicated that it will support the Supreme Court, but not spelled out how. Pakistan today stands at political crossroads and all the stake holders need to work together towards building a stable and democratic Pakistan. It should seek to cleanse the country of terrorism and sectarianism, disband its terrorist assets, and step aside to allow the civilian government to build the country. The army cannot wait any longer for their time tested ally China to come to their rescue. A stable and democratic Pakistan portends peace and harmony in the region.