Craig Kyzar — From a comfortable distance, Pakistan’s parliamentary system would seem a familiar blueprint for democratic optimism, 
ensuring political legitimacy through a rigid separation of powers. As with any self-policing system, however, the very strength of these democratic safeguards relies entirely on unyielding respect: respect for the will of the people governed, and for the inviolable integrity of the system itself. Without both, the power of any nation’s constitution becomes feeble and convenient, existing at the whim of abusive hands to subvert those it was drawn to protect.
When it comes to the law, words are notoriously flexible. This makes an impartial judiciary absolutely indispensable in preventing abuses by the nation’s lawmakers. But what happens when the judiciary itself is the one apparently waging politically driven war on its own constitution, as the Pakistani Supreme Court has done in its continued pursuit of charges against Pakistan’s sitting president?
While President Zardari’s colorful past makes him a difficult man to defend on principle, he is a serving head of state and carries with him the sanctity of his office. The Supreme Court’s relentless pressure on a succession of Prime Ministers to petition Switzerland to re-open criminal money laundering charges has blinded them both to supreme domestic law and international legal custom. As felt by some experts, fueled by opposing military support, the judiciary seems intent on delegitimizing the governmental structure through unconstitutional strong-arming tactics rather than bolstering it with reasoned legal interpretation.
Presidential immunity is, to varying degrees, a universal notion. But seldom is it laid out as explicitly as in Pakistan’s own constitution. Therein, Article 248 expressly forbids the initiation or continuation of criminal charges against the president while he occupies the office. Period. And yet, since the apex court’s 2009 nullification of amnesty granted under the 2007 NRO (National Reconciliation Ordinance), the judiciary has repeatedly called for the resumption of investigations against President Zardari, without offering guidance as to its justification for doing so.
While an argument could be formulated that Zardari’s entire presidency is illegitimate, given that he assumed office under now-voided amnesty, no effort has been made to challenge the election itself. Instead, the court has exacerbated the standoff by repeatedly missing opportunities to provide its own viewpoint on the legitimacy of its actions, opting to state only that the apex court had not yet adjudicated the question of immunity. But why not? The NRO decision provided an ideal chance for the court to address the implications of its ruling relative to executive privilege, yet it declined the opportunity to put such an assessment on record.
By spearheading a campaign to coerce the Prime Minister into potentially unconstitutional activity without providing a reasoned framework to minimize his legal exposure, the judiciary is expressly undermining its own integrity as an increasingly non-neutral party. Moreover, the court’s actions seem an ill-informed attempt to circumvent domestic law by appealing to the sovereign system of Switzerland to accomplish what it cannot at home. While Swiss authorities are not bound domestically by the constitution of another nation, the Pakistani Supreme Court must surely be aware of longstanding customary international law granting foreign heads of state rather broad diplomatic immunities against all but the most egregious charges.
In Democratic Republic of Congo v. Belgium, the International Court of Justice has clearly reminded that, “in international law, it is firmly established that, as also diplomatic and consular agents, certain holders of high-ranking office in a State, such as the Head of State, Head of Government, and Minister for Foreign Affairs, enjoy immunities from jurisdiction in other States, both civil and criminal.” By cornering top domestic executives into possibly unconstitutional action and seeking the violation of established international law by a foreign nation, the court seems engaged in a bafflingly self-serving pursuit with little regard for external perception.
Make no mistake; as an individual, President Zardari is as susceptible to the rule of law as any other citizen. If the charges against Zardari hold merit, nothing in the Pakistani Constitution or elsewhere prevents the realization of justice for non-official crimes following the end of his presidential term. The intent behind any law that shields a sitting president from criminal proceedings is simple and universal: the prevention of politically motivated nuisance charges that could ultimately impede the president’s ability to govern. Should the people of Pakistan desire a less absolute immunity, it is the role of parliament to prompt such change accordingly. So why would an impartial and enlightened court – one that respects its role in a legitimate government for the people – even begin to reach beyond its constitutional parameters and publicly salivate over the unnecessarily immediate reinstitution of charges?
Of course, it is not too late and considerable progress can be still be made with a clarification of the NRO ruling relative to Zardari’s immunity. Short of that, and by acting with such manifest disregard for the law it is sworn to uphold, the Pakistani judiciary is heading down a dangerous path toward governmental instability.
That the people will rise up against the abuses of any one branch, in the defense of another, should be the unthinkable deterrent that ensures the integrity of a democratic system. It is glaring fork in an uncertain road. To one side lies a tentative blueprint for peace. To the other lies a certain recipe for disaster.
