In its short order of December 16, 2009, the Supreme Court of Pakistan declared, inter alia, the National Reconciliation Ordinance (NRO) to be “an instrument void ab initio being ultra vires and violative of various constitutional provisions,” including;
Article 4 Right of individuals, to be dealt with, in accordance with law, etc.
Article 8 Laws inconsistent with or in derogation of fundamental rights to be void
Article 25 Equality of citizens
Article 62 Qualifications for membership of Majlis-e-Shoora i.e., Parliament
Article 63 Disqualifications for membership of Majlis-e-Shoora
Article 89 Power of President to promulgate ordinance
Article 175 Establishment and jurisdiction of courts and
Article 227 Provisions relating to the Holy Quran and Sunnah.
On October 12, 2007, while hearing the petitions challenging the NRO the Supreme Court, observed:
“. . . however, we are inclined to observe in unambiguous terms that any benefit drawn or intended to be drawn by any of the public office holder shall be subject to the decision of the listed petitions and the beneficiary would not be entitled to claim any protection of the concluded action under Sections 6 and 7 of the impugned Ordinance, under any principle of law, if this Court concludes that the impugned Ordinance and particularly its these provisions are ultra vires of the Constitution.”
This was before the proclamation of the so-called ‘emergency’ of November 3, 2007 and issuance of Provisional Constitution Order by General Pervez Musharraf.
After the Supreme Court Short Order dated July 31, 2009, the permanence given to the NRO by the PCO of 2007 and validity imparted to it by the PCO / Dogar-Supreme Court did not hold water and the Parliament also declined to avail the opportunity offered by the Supreme Court of adopting it within 120 days with retrospective effect. The government had to retreat as even the treasury benches did not warm up to it.
While passing the Short Order on December 16, 2009, the Honorable Supreme Court, declaring the NRO null and void, has directed the concerned authorities to reopen the cases and reverse the acquittals of the NRO’s beneficiaries.
The PPP-led government could not defend this controversial piece of legislation, despite the fact it provided relief to the so-called, ‘victims of political persecution’ and qualified them to contest the elections.
During the hearing of petitions against the NRO in the Supreme Court, it transpired that nearly 8000 people had benefited from this unconstitutionally promulgated Ordinance, including President Asif Ali Zardari, several PPP-stalwarts, thousands of the MQM leaders and activists (who faced criminal charges) and a large number of bureaucrats and businesspersons. Some of these bureaucrats and businesspersons were allegedly front men of Asif Ali Zardari.
The petitioners challenging the NRO used the platform of the Supreme Court to highlight the alleged financial improprieties and corrupt practices of President Asif Ali Zardari, including the matter of $ 60 million kickbacks from a Swiss company and the six-month suspended sentence awarded to Benazir Bhutto and Asif Ali Zardari for money laundering by an investigating judge in Geneva.
The probing questions of the Honorable Judges about Mr. Zardari’s wealth, including his assets outside Pakistan, and various remarks made by them during the proceedings of the case proved to be very embarrassing for the PPP.
It also created an impression in some quarters, who, contrary to reality, allege that the Supreme Court was taking up issues extraneous to the matter under consideration and working on the agenda of destabilizing the PPP-led government by specifically targeting President Asif Ali Zardari.
Even before the Supreme Court took up the various petitions related to the NRO for regular hearing, the PPP, particularly the President Mr. Zardari had adopted confrontationist approach.
During his video address to the PPP rally on November 25, 2009, President Asif Ali Zardari had alluded to the military establishment as an anti-PPP entity.
At one point during the hearing of the petitions, senior advocate Mr. Kamal Azfar, who was representing the federation, alleged that the American CIA and the GHQ were hatching conspiracies to derail the democratic system. Although later on he submitted that, it was his personal view. One does not need a stroke of genius to understand that this personal view (?) was by design and part of advocacy, it could not have happened without instruction from his client -the president.
Seen in the context of the Supreme Court’s observations of October 12, 2007, quoted above, the PPP’s concern about what is in the offing after the verdict is understandable.
In the light of the Supreme Court’s observations it seems that the propriety of candidature of those who qualified or were allowed to take part in the presidential and parliamentary elections after getting relief from the NRO was subject to the final judgment of the Supreme Court in the petitions against the NRO.
In view of the Supreme Court’s Short Order there is a big question mark on the fate of President Asif Ali Zardari, some ministers and a number of parliamentarians who had benefited from the NRO before they contested the elections.
The legal opinion is divided even on the issue of immunity to President Zardari under Article 248 (2) and (3) of the Constitution, which matter is likely to be taken up and decided by the Supreme Court at some stage.
Leaving the finer legal points aside, the question is: do those people whose cases have been revived or acquittals reversed, including President Zardari, enjoy the moral authority to continue in office.
Ironically, no one knows better than the PPP leaders about the veracity of various graft and corruption charges under investigation against him. However, instead of stepping down, President Zardari and the NRO-tainted ministers are clamoring for people’s sympathy by alluding to military-judiciary conspiracy with the connivance of media aimed at toppling the PPP-led government. The PPP ministers have decided to appear before the courts and go down as convicts or disqualified to hold public office.
Simultaneously with declaring that the PPP respects the judgment of the Supreme Court, its leaders are hinting at using the so-called ‘Sindh card’ and quite irrelevantly asserting that this time no more ‘death bodies’ will be accepted by Sindh. Apart from damaging the federal compact, these unveiled and crude threats are imparting the image of a Sindh-based party to the PPP-a federal party.
Instead of attempting to cool down the temperature, President has continued with his confrontationist rhetoric.
Addressing a gathering on the second death anniversary of Benazir Bhutto in Naudero on December 27, 2009, he spoke of threat to Pakistan from non-state actors and said that the institutions “were being pitted against each other”. President Zardari stated; “Benazir Bhutto did not embrace martyrdom so that non-state actors or anyone else could take over democracy.”
In the same speech President Zardari referred to Zarfikar Ali Bhutto’s oft-quoted statement that he would rather die at the hands of a dictator than history, and added, “We cannot change our habits and they cannot change their thinking.” In the context of clash of institutions, President Zardari declared; “People of Pakistan will not let their country turn into Iraq, Afghanistan or Somalia.”
Most analysts agree that President Zardari directed his tirade, against the military establishment, media, judiciary and the United States. Perhaps by alluding to the United States, President Zardari erroneously aims at gaining public sympathy.
The saner elements within the PPP know, at the end of the day it is good governance and popular standing that bestow strength to the system, being elected is getting started.
They also understand that Pakistan’s democracy is nascent and there are areas in which even the elected government should refrain from meddling.
They apprehend that if the PPP fails to improve the quality of governance and its rating with the people, and does not show necessary deference to the sensitivities of various state institutions, in particular the Pakistan armed forces and Judiciary, its days are numbered.
Perhaps the Supreme Court is mindful of the way the hawks in the PPP are projecting the current situation despite the Supreme Court having taken up the cases of loan default and write-off to widen the scope of its populist activism to curb the corruption.
This has dragged some prominent leaders of other parties, in particular the PML (Q), into the orbit of accountability. This ought to be the answer to the PPP demand that accountability should not be selective.
That said, the judiciary has its limitations. It has to adopt the due process of law and its mechanism is slow. Besides, the success of judiciary depends on the efficiency and commitment of the executive in prosecuting the culprits as enshrined in the Constitution.
In spite the landmark Judgment of the Supreme Court of July 31, 2009, on PCO no steps are taken to prosecute General Musharraf for high treason under Article 6 of the Constitution.
Another instance is indifference of the Government and its functionaries in the matter of Sugar Crisis and directions of the Honorable Supreme Court.
In the present instance also, there are too many beneficiaries of the NRO, including top bureaucrats. The Supreme Court cannot remain oblivious to such non-cooperative government and its functionaries, some of whom happen to be the holders of highest offices in the very departments those are supposed to prosecute them. The Supreme Court cannot be effective and live up to its constitutional and moral authority without the might of the State and its functionaries implementing its authoritative pronouncements.
Besides, PML (N) the harbinger of the opposition and coalition partner of PPP in Punjab is not much better. The Supreme Court judgment in the Zafar Ali Shah Case has recounted the misdeeds of Nawaz Sharif in considerable detail.
In this regard it would not be out of place to reproduce an except from the Supreme Court’s Short Order (Judgment) of May 2000 in Syed Zafar Ali Shah’s case which described the prevalent situation under Prime Minister Nawaz Sharif, while validating military takeover of October 12, 1999:
“where the representatives of the people, who are responsible for running the affairs of the State are themselves accused of massive corruption and corrupt practices and in the public as well as private sectors are benefiting therefrom and resist establishing good governance; where a large number of references have been filed against the former Prime Minister, Ministers, Parliamentarians and members of the Provincial Assemblies for their disqualification on account of corruption and corrupt practices; where there is a general perception that corruption is being practiced by diversified strata including politicians, parliamentarians, public officials and ordinary citizens and that a number of parliamentarians and members of the Provincial Assemblies mis-declared their assets before Election Commission and Tax Authorities, where there was no political and economic stability and bank loan defaults were rampant. . . . .
where . . . . there was no real democracy because the country was, by and large, under one man rule; where an attempt was made to politicize the Army, destabilize it and create dissension within its ranks and where the judiciary was ridiculed, leaving no stone unturned to disparage and malign it by making derogatory and contemptuous speeches . . . . where storming of the Supreme Court was resorted to allegedly by some of the leaders and activists of the Pakistan Muslim League . . . .
where Mian Nawaz Sharif’s constitutional and moral authority stood completely eroded and where situation was somewhat similar and analogous to the situation that was prevalent in July 1977, the extra-constitutional step of taking over the affairs of the country by the Armed Forces for a transitional period to prevent any further destabilization, to create corruption-free atmosphere at national level through transparent accountability and revive the economy before restoration of democratic institutions under the Constitution, is validated in that Constitution offered no solution to the present crisis.”
Interestingly, Honorable Chief Justice Iftikhar Muhammad Chaudhry was one of the judges on the Bench that delivered the above judgment.
Thus, notwithstanding verbal support, at heart Nawaz Sharif may never be comfortable with an independent judiciary if the PML (N) comes to power.
One option for the Supreme Court is to proceed with the cases of corruption and graft as they come up before it and remain stuck to the letter and spirit of the law in deciding them without playing to the gallery during the hearings. Simultaneously it can take suo moto notice of the present situation and ask all the office holders in federal and provincial governments, members of the Parliament and provincial assemblies, and office bearers of registered political parties to declare their assets and properly account for them within a specified timeframe.
Those who do not comply be disqualified taking part in politics for lifetime.
Presently the PML (N) is playing safe. Its main concern is not to let the system derail. It has cooperated with the PPP in forging consensus on the Award of the National Finance Commission. It has not played its due role as the opposition in the sugar, wheat and electricity crises and may do the same on Supreme Court’s decision on NRO beneficiaries.
It wants to secure repeal of the Seventeenth Amendment to revert to parliamentary form and its demand for accountability is somewhat muted, which is understandable in view of the past corrupt practices of its leaders.
When the Opposition is friendly to the PPP led government, why should the Supreme Court take upon itself the role of opposing the government and be falsely, insinuated against of derailing the system?
The military establishment seems to be uneasy with the present political dispensation. The Short order of the Supreme Court on the NRO and belligerent stance of the President and the Government has placed it in a catch 22 situation.
However, it has its hands full in Balochistan, FATA and NWFP due to insurgency, militancy, foreign funded and enemy sponsored terrorism. At this critical juncture when economic scenario is bleak, obviously it is not in a position to shoulder the direct responsibility of governance.
If the Seventeenth Amendment is repealed and Zardari survives as nominal head of the state, the military establishment may have no stomach to have more on its platter.
However, if the present belligerence of the President and the Government continues and Supreme Court is defied, the operation clean-up would become absolutely necessary, to safeguard national interests.
The judiciary may invoke article 190 of the Constitution and call upon the State Institutions, including the Armed /forces to implement its decisions.
Unlike 1997, the Supreme Court is united, enjoys the popular support of the intelligentsia the Civil Society, Media and the Masses. Hence all executive and judicial authorities through out Pakistan shall have to act in aid of the Supreme Court, including the Armed Forces.
