Judiciary vs Executive

The first thing that should strike the mind in the ongoing confrontation between the judiciary and the executive is that there is no obvious answer regarding who is right and who is wrong.

Both sides are seemingly correct in their own way. As far as the judiciary goes, they are protecting the constitution. Who can fault someone for that?

What of the executive? President Zardari and his gang of coalition allies. From the outset, they have consistently reiterated that the parliament is the country's supreme political institution over and above the judiciary and that members of parliament are the true representatives of public will. By consistently equating the executive with the parliament, Zardari and his supporters have tried to portray the judicial attack on the executive as an attack on democracy. By attacking democracy, they say, the judiciary is implicitly pushing for military rule. This is particularly dangerous in a country that has experienced long bouts of military rule. It is particularly dangerous in a country which is presently experiencing one of its longest periods of democratic rule. It is particularly dangerous in a country which is going through an economic and fiscal crisis that may worsen if the political system becomes any more unstable.

Except, one cannot equate the executive with democracy as the PPP is doing.

When discussing this confrontation, it is not enough to nonchalantly refer to the side confronting the judges as simply the "politicians". Or "democracy". There are many types of politicians within a democratic system and they all come together to make it a working system. There are many components in a democratic system and the executive is but one of these. The judiciary is not taking on democracy specifically; it is taking on the executive as represented by the ruling PPP government.

To say that the judiciary is taking on the entire institution of democracy is, at best, inaccurate and, at worst, defamation.

Why the need for this distinction between democracy and executive?

Because, it is possible for a country to experience democratic rule as Pakistan has been doing and simultaneously suffer at the hands of an inept ruling government. Democracy, as a system, is not to blame. But one of its components is blameworthy. What the PPP is doing is blurring the fine distinction between democracy and the executive. Zardari is hiding behind the cover of democracy to disguise his executive's shortcomings.

But is it possible that pressuring the ruling government can eventually disrupt the entire democratic process even if the judiciary doesn't want to? Just because the judiciary does not intend to destroy democracy doesn't mean that it won't. No one - the judiciary included - is capable of predicting the results of the judiciary's constant pressuring of the civilian government.

Given Pakistan's history of military rule, this is a real danger. However, the danger is overstated. Pakistani democracy has been around for too long and the concept of multi-party politics is too firmly entrenched in the Pakistani psyche. Even when Musharraf ruled, he was forced to do so through the PML-Q. As such, even if the civilian government was ousted, it would come roaring back. The net result of such a turn of events would be Pakistan going through military rule only to inevitably come back to democratic rule.

Far from disrupting democracy, the courts are performing two vital functions by attempting to hold the PPP accountable.

They are asserting their own autonomy and creating their own identity among the various political institutions. This is important because a functioning democracy requires a delicate balance of power between all institutions. Dysfunction occurs when one institution does not have its own identity and becomes subordinate to others. One example of this is when the judiciary loses its identity and becomes a puppet of the executive as has so often been the case in Pakistani history.

Further, the courts are setting a unique precedent for future democratic governments: that it is not enough to simply be elected into power. A government must deliver upon its public mandate. If it doesn't, then that regime will be held accountable. Not through military might, as in the past, but through the rule of law.

When looked at from this angle, the confrontation between institutions becomes clearer.

The executive is in the wrong. The judiciary, in the right.

Should Gilani Resign?

The question of whether or not Gilani should resign is a legal one but it can also be considered a moral one.

Leaving aside the whole issue of parliamentary procedure and the various legal mechanisms that are present to disqualify a Prime Minister, there is the simple argument that the Prime Minister is a convicted criminal. At a purely personal level, then, he is not fit to lead a country. He doesn't have the moral foundation to do so whatever the eventual legal outcome is.

Of course, politics is about more than one person. The Prime Minister is no ordinary person and his resignation has all kinds of ramifications. The biggest one, from a national standpoint, is the issue of stability. So, the question that needs to be asked is whether or not Pakistan will become unstable as a result of Gilani's resignation.

The short answer is no.

Instability in a regime is felt when a political actor with substantial weight is abruptly thrown out of the mix. It is felt when someone irreplaceable leaves the scene. Gilani does not fit that bill. The PPP has no end of replacements for someone to fit the mould of an established party stalwart who will do the PPP leadership's every bidding.

The other factor to consider is that the PPP's present term in office is nearing an end. The election season has already begun and all of the political players are positioning themselves in anticipation of the next term in office. As such, a resignation by Gilani who is already on the way out would do little to affect political stability from the point of view of the democratic political process.

What about political stability as viewed by the army? Once again, Gilani's departure will probably do little to affect this. From the army's standpoint, the PPP is the institution of power while Gilani is simply one among many PPP politicians. The army is more concerned with the public's appetite for democracy versus army rule and are not so much concerned with a single political personality like Gilani. A Gilani departure followed by nomination of a like-minded replacement will not be significant enough to change the public's view of democracy and that is what the army cares about most.

On his own end, Gilani has confronted all the talk of his resignation head-on. He has repeatedly pointed out that the public, through the support of his parliamentary allies, have given him reason not to resign. This is a fiendish rhetorical trick because it plays on the public's sympathy for a government that is ruled by the people. Gilani knows that he can count on his parliamentary allies to not call for his resignation because these allies - like any rational politician - would much rather bring about his disqualification through the legal constitutional mechanisms that are already in place as opposed to abruptly ending his appointment by a vote of no-confidence.

Taken together, these points highlight a political leader who has no personal moral legitimacy and whose resignation would not affect political stability from any angle. To top it off, he is forcing his parliamentary allies to support his morally bankrupt position.

He should resign.

Gilani's Problem wih the Law

Morality is timeless. But legality isn't.

Any government which only worries about the legal force of its positions and doesn't care about their positions' moral force is only focusing on the short-term and cannot be expected to bring about long-term prosperity for its country.

The Gilani government's ongoing conflict with the judiciary will be analyzed for some time to come. The lengthy arguments and counter-arguments between Aitzaz Ahsan and the Chief Justice will be picked apart continuously. And several themes will no doubt emerge.

The most important one is how the PPP government views the role of law: it is an instrument with which one can gain political power and then hold on to such power. Gilani's government is interested in proving the legality of its actions but is not at all interested in the underlying morality of its legal arguments.

How else can one explain some of the content in the appeal that Aitzaz Ahsan filed to the Supreme Court?

One argument asks whether it is possible for a Prime Minister to have contempt for the Supreme Court when that same Prime Minister gave the order to release detained Supreme Court judges. Do Aitzaz and Gilani not realize that the release order may have been politically motivated and therefore have nothing to do with how much respect Gilani has for the courts? Do they not realize that it is possible for a person to respect the courts at one point in time and then perform an action that shows contempt for those same courts at another point in time?

Of course, they do.

Another section in the appeal notes the irony of a Prime Minister possibly being sentenced by the same judiciary that he released. Do Aitzaz and Gilani not realize that whether or not a certain outcome is ironic has no relation to whether or not that same outcome is just?

Of course, they do. History is full of such ironies.

Yet another section of Gilani's appeal asks whether it is reasonable for the Prime Minister to be sentenced by Supreme Court judges when the individuals who were originally responsible for the sacking of the judges have yet to be formally charged and indicted. Do Aitzaz and Gilani not realize that the sentencing of a criminal should not be dependent on whether or not some other criminal has been successfully indicted?

Of course, they realize this. By their warped logic, no criminal would ever be sentenced because there would always exist some other criminal who is free and has yet to be sentenced.

The above legal arguments were of such dubious nature that Aitzaz Ahsan was forced to remove them from his appeal under pressure from the furious Supreme Court judges who believed that Gilani was trying to influence the judiciary. Ultimately, the Supreme Court rejected Gilani's appeal and will formally indict him.

Gilani's upcoming Supreme Court appearance gives him an opportunity to demonstrate whether he and his government have learnt anything from this sorry episode. Are they ready to start using the law for a higher moral purpose than simple political gain?

Democracy's next chapter

The familiar refrain of a democracy under threat is once again making the rounds in Pakistan.

The source of these worries is the image of the ruling government having to defend itself in the face of pressure from the military and the judiciary.

Last month, Prime Minster Gilani cryptically referred to the military establishment as a "state within a state" that must bow down to the government. More recently, Gilani reminded the judiciary of his public mandate to rule and the supremacy of the parliament above all else when he addressed the National Assembly during the passing of a pro-democracy resolution.

The culmination of the face-off between these state institutions occurred when Gilani appeared in the Supreme Court to defend himself against charges of contempt for not initiating cases against President Zardari. If Gilani is found guilty, it may potentially force early elections. To the casual observer, this situation seems ripe for democratic instability.

However, the Prime Minister's Supreme Court appearance is actually a good thing for Pakistani democracy in the long-run.

Democracy has been described as government of the people, by the people, for the people. In its present form, Pakistani democracy is certainly of the people, and by the people. That is why Gilani can repeatedly refer to his public mandate to rule and continually trumpets the supremacy of a parliament that is full of his coalition allies. The elections that brought the PPP and its allies to power were not as free and fair as we would have liked. But they were elections, nonetheless. In that sense, the present government is a legitimate expression of popular will.

By only focusing on his party's popular support, however, and forgetting his responsibilities as Government CEO, Gilani conveniently forgets how democracy cannot simply be by the people and of the people but must also be for the people.

It is that sense of accountability for the people that Gilani's Supreme Court appearance should be taken to represent.

It is likely that not much will come out of all of this due to the presidential immunity granted to Zardari via Pakistan's Constitution, and the Vienna Convention. What is more significant is the symbolism behind the Supreme Court attempting to hold the government accountable for not acting upon the judiciary's recommendations.

A frequent complaint against such open questioning of the government is the need for stability. This argument says that Pakistani democracy is inherently fragile and undue stress must not be placed upon it. Such an argument is particularly powerful in a country that has experienced sustained periods of military rule and where the military is perceived to hold sway over the civilian government even during times of democratic rule.

The argument, however, does not hold because it underestimates the strength of Pakistan's democratic structures, which have endured even during military rule.

Consider the Musharraf era. From the outset, Musharraf was forced to govern through parliamentary allies. He sought to legitimize his rule by seeking a show of support from the parliament. He tried to lengthen his rule by granting amnesty to popularly elected politicians. When he was forced out, it was due to a populist movement.

Democracy in Pakistan has progressed too far for it to be brought down so easily. What is needed now is for democracy to move beyond a simple expression of popular will and towards a system where the ruling government - no matter what party it happens to be from - is held accountable, whether it is the Supreme Court that does the accounting or the voters at the next election.