The Mexican Standoff …

There is a consensus in the country that the PPP will win the next election and President Asif Ali Zardari will retain his office: if there is an election that is. But on the other hand, there is also wholesale resentment and disgruntlement with rising inflation and the exorbitant cost of living: for the most part Zardari’s performance is quite pitiful. Most honest Pakistanis are, in fact, opposed to what the PPP has “achieved” and appalled by its retrograde policies for the country.

So let’s examine what has been happening. The former prime minister Mr Gilani was removed from his office by the Supreme Court’s order dated 19 June 2012: see posts here and here. Subsequently, the present prime minster Raja Pervez Ashraf took office and was summoned (in Criminal Miscellaneous Application No. 486 of 2010 in Criminal Appeal No. 22 of 2002) by the Supreme Court on 12 July 2012 and the matter was adjourned until it was heard in August by Khosa J.

But under the Constitution of Pakistan 1973 (“the constitution”), state functionaries enjoy the following protections;

248. Protection to President, Governor, Minister, etc. (1) The President, a Governor, the Prime Minister, a Federal Minister, a Minister of State, the Chief Minister and a Provincial Minister shall not he answerable to any court for the exercise of powers and performance of functions of their respective offices or for any act done or purported to be done in the exercise of those powers and performance of those functions: 

Provided that nothing in this clause shall be construed as restricting the right of any person to bring appropriate proceedings against the Federation or a Province.

(2) No criminal proceedings whatsoever shall be instituted or continued against the President or a Governor in any court during his term of office.

(3) No process for the arrest or imprisonment of the President or a Governor shall issue from any court during his term of office.

(4) No civil proceedings in which relief is claimed against the President or a Governor shall be instituted during his term of office in respect of anything done by or not done by him in his personal capacity whether before or after he enters upon his office unless, at least sixty days before the proceedings are instituted, notice in writing has been delivered to him, or sent to him in the manner prescribed by law, stating the nature of the proceedings, the cause of action, the name, description and place of residence of the party by whom the proceedings are to be instituted and the relief which the party claims.

Yet whatever deadline for writing the letter to the Swiss authorities is set by the Supreme Court and whatever the government musters up in its support, the above protections must be balanced against the larger interests of Pakistan’s people.

Thus, one must not lose sight of articles 5 and 6 of the constitution which are set out in the following terms:

5. Loyalty to State and obedience to Constitution and law.
(1) Loyalty to the State is the basic duty of every citizen.
(2) Obedience to the Constitution and law is the [inviolable] obligation of every citizen wherever he may be and of every other person for the time being within Pakistan.

6. High treason.
[(1) Any person who abrogates or subverts or suspends or holds in abeyance, or attempts or conspires to abrogate or subvert or suspend or hold in abeyance, the Constitution by use of force or show of force or by any other unconstitutional means shall be guilty of high treason.]
(2) Any person aiding or abetting [or collaborating] the acts mentioned in clause (1) shall likewise be guilty of high treason.
[(2A) An act of high treason mentioned in clause (1) or clause (2) shall not be validated by any court including the Supreme Court and a High Court.]
(3) [Majlis-e-Shoora (Parliament)] shall by law provide for the punishment of persons found guilty of high treason.

So it follows that this the resolution of this Mexican standoff involves a balancing and proportionality exercise and it is by no means certain that whilst in office the president will enjoy  “immunity” from prosecution. The logic here is simple because given the nature of the present constitutional crisis and the terms of the armed forces’ oath of allegiance to the state in protecting the constitution it may even be possible, at least in theory, the president could be forcibly removed from office for violating his own oath of office. Under the third schedule of the constitution, members of the armed forces must affirm the following oath:

(In the name of Allah, the most Beneficent, the most Merciful.) 

I, ____________, do solemnly swear that I will bear true faith and allegiance to Pakistan and uphold the Constitution of the Islamic Republic of Pakistan which embodies the will of the people, that I will not engage myself in any political activities whatsoever and that I will honestly and faithfully serve Pakistan in the Pakistan Army (or Navy or Air Force) as required by and under the law.

May Allah Almighty help and guide me (A’meen).

By comparison, the president must enter into the following commitment and abide by its terms:

(In the name of Allah, the most Beneficent, the most Merciful.)
I, ____________, do solemnly swear that I am a Muslim and believe in the Unity and Oneness of Almighty Allah, the Books of Allah, the Holy Quran being the last of them, the Prophethood of Muhammad  (peace be upon him) as the last of the Prophets and that there can be no Prophet after him, the Day of Judgment, and all the requirements and teachings of the Holy Quran and Sunnah:

That I will bear true faith and allegiance to Pakistan:

That, as President of Pakistan, I will discharge my duties, and perform my functions, honestly [this is a big question with the present El Presidente], to the best of my ability, faithfully in accordance with the Constitution of the Islamic Republic of Pakistan and the law, and always in the interest of the sovereignty, integrity, solidarity, well- being and prosperity of Pakistan: 

That I will not allow my personal interest [hard to say that El Presidente has not placed his personal interest first] to influence my official conduct or my official decisions: 

That I will preserve, protect and defend the Constitution of the Islamic Republic of Pakistan:

That, in all circumstances, I will do right to all manner of people, according to law, without fear or favor, affection or ill- will:

And that I will not directly or indirectly communicate or reveal to any person any matter which shall be brought under my consideration or shall become known to me as President of Pakistan, except as may be required for the due discharge of my duties as President.

May Allah Almighty help and guide me (A’meen). 

Ultimately, if the Mexican Standoff between the government and the judiciary (which is being accused of acting at the behest of the armed forces) continues over the implementation of paras 177 and 178 of the NRO judgment then it may even be possible that there is a coup d’état rather than fresh elections. It should be noted that 18 September 2012 is the latest deadline that has been set by the apex court for prime minister Ashraf to fulfil his duties to the state and write the said letter to the Swiss authorities inviting them to reopen the case against President Zardari. So there are just two more days until time to write the letter runs out. After that the government will be running on borrowed time yet again.

On any view ordinary Pakistanis would like to see things improve and despite all the corruption (which is accentuated by the water and energy crises in the country), loss and damage are better mitigated if either the Supreme Court or the government backs down to end the stalemate.

Such is the shameful state of Pakistan today …

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