Can Gilani be ousted?

PM Gilani. Source: DAWN

The court has won and democracy has lost. In an excellent strategic move by the Supreme Court of Pakistan, the cheif justice has diverted all media attention from his son , Dr. Arsalan Ifthikar, shifting the new focal point towards Prime Minister Yousuf Raza Gillani.

The Journalists are jubilant. The court's decision has given them a chance to enshroud the recent Media Gate scandal. Nineteen top journalists were working on Mr. Malik Riaz's pay roll. They were illegally defending a capitalist, who had strong ties with the elite of the Pakistan Army and political establishment. The video leak was a puncture in the Journalist-Capitalist-Military union. Someone had to save them from drowning, and behold! The court came to their rescue.

At a juncture where the Supreme Court should had focused on how money manages the intricate power balance, how capital manipulates media attention, and how capitalists and generals agree upon large housing enterprises; the court took an easier path through the forest. Certainly, solving the Media Gate scandal would have allowed the nation to understand the dynamics of illegal capital in Pakistan. It would have unearthed the names of many more corrupt generals, journalists, politicians, and judges. The Supreme Court could have helped in purifying the money supply mechanism in the country, but it failed to do so.

The Supreme Court has directed its attention towards a case that will only help in damaging the immature democratic dispensation. The whole premise for ousting PM Gillani is that he hasn't fulfilled the courts order to file a case against the current president of Pakistan, Mr. Asif Ali Zardari. Is a piece of letter that much important that a nominated prime minister should be forced to leave his office? Will the next PPP prime minister write such a letter? What will the Supreme Court do, if the second nominated prime minister also disobeys the court's order? Will the Supreme Court also oust the second? The decision will only catalyse the present instability in the country. It has opened a new constitutional Pandora's Box, which can only be closed after the end of this government's tenure.

The Court knows that it has opened a Pandora's box. The question is why are they destabilizing the country? The Supreme Court doesn't want to topple the status quo. It's helping the military elite like it has always done in history. It is bringing smiles on the faces of the Punjabi ran establishment. It is helping the noxious and money-hungry media tycoons and journalist. It is weakening democracy, so the chief justice remains the undefeated saviour who can solve all problems of the country. All in all, the decision is going to maintain the status qou, and the power of the majority would still remain in the hands of the non-legislative institutions of the state.

Apart from all this, the decision is unconstitutional from the perspective of any democratic norm. In a democracy, supremacy lies with the majority. It doesn't lie in the hands of a clergy, judiciary, or army elite. The chief justice has no power to topple the decision which 180 million Pakistanis gave in February 2008. He should at least respect the basic premise of democracy that Aristotle told 2400 years ago:

"Democracy arises out of the notion that those who are equal in any respect are equal in all respects; because men are equally free, they claim to be absolutely equal."

But in today's Pakistan, democracy has become - in the words of Emerson - a government of bullies tempered by editors. In our context, the bullies are the judges while the editors are the media journalists.

Now, the Supreme court insists that the Prime Minister should write a letter to the Swiss authorities. The constitution is very clear about the issue presidential indemnity. Article 248 of the constitution states:

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

Why is Mr. Iftikhar Chaudry insisting the Prime Minister to follow an unconstitutional order? Has he not read the constitution? I hope he must had read it.

Rather than solving Dr. Arsalan Ifthikhar case, the CJ has consciously saved his son. Just look at the timing of this decision! Two weeks back, an eminent civil rights activist, Ms. Asma Jahnegir said that 17 judges have no right to rule 180 million people. Then came the issue of DR. Arsalan Ifthikhar bring CJ's son in the  limelight. Next, the SCP (Supreme Court of Pakistan) passed a decision declaring the former Pakistani Ambassador to USA, Mr. Hussian Haqqani, a traitor. Meanwhile, the Media Gate scandal completely destroyed media's credibility. 

This latest decision is the golden egg in the SCP's basket. The Chief Justice will call it a personal victory, while the journalist will view it as an excellent propaganda to cover their ills. 

For me, the recent move by the chief justice is undemocratic by the very definition of democracy. Noam Chomsky commented:

The most effective way to restrict democracy is to transfer decision-making from the public arena to unaccountable institutions: kings and princes, priestly castes, military juntas, party dictatorships, or modern corporations.

The people of Pakistan would never allow a specific institution to seize their constitutional right to govern themselves.