NRO Judgment (19-12-2009)

Pakistani political soap opera continues and so far no surprises for the audience. In the latest episode the Supreme Court declared that the National Reconciliation Ordinance was “ultra vires and violative of various constitutional provisions.” Much before the court took up the matter on 7th

December this decision was expected as nobody was willing to defend a bad law. Even the government and its allies first backed out from getting this bad law passed from the parliament, and then made it clear in the Supreme Court that its not going to defend this law.

The Acting Attorney General Shah Khawar stated clearly that the NRO “was promulgated by the previous regime and I am under instruction not to defend it.” Then entered my friend Barrister Kamal Azfar representing the Federation, but  perhaps his role was only to highlight the political side of the case. Having made a politically charged allegation that the political system is threatened by the GHQ and CIA, he clarified on the next day that it was his personal view and not that of his client (Federation). He pleaded “as such I withdraw the same” allegation. Interesting isn’t it. President Zardari, who was the whipping boy during the proceedings of this case, also rushed to say that Azfar’s remarks about GHQ and CIA were uncalled for. What is intriguing is how come Barrister Azfar clubbed GHQ and CIA as a threat to the system, when the Americans have tied their aid to Pakistan with the civilian government’s control over the army? I wonder is it a political miscalculation or he knows through his clients more than we all do.

Those who have been consistently struggling against the military interference in politics since the time of Ayub Khan feel that Kamal Azfar should have put on record how democratic dispensations have been sabotaged in this country.  This could have provided the right political prospective to the case which would have long-term implications for the politics of Pakistan.

Of the thousands of NRO beneficiaries which included those who have been indicted for murder and rape, the Supreme Court particularly mentioned the money laundering case in which President Zardari is an accused. While striking down a disgusting law, perhaps the SCP also wanted to show that justice should be started from the top.

But now the unexpected twist in the story. The Swiss Law Ministry spokesman has said that first the Pakistani Courts would have to re-open the case and convict the accused and then come to them. The logic is that the charge of ill-gotten wealth, which it was, has to be proved where the crime was committed. The money laundering has to then follow. This was not expected by many people who thought that by going to Swiss courts directly the hot issue of President’s immunity would be tackled well. The ball is back in Pakistan’s court.

Now coming up in the next episode of this never ending political soap would be the petition challenging the immunity of the President. The media would once again have a good topic for the talk shows and to keep up the ratings. And the Kharadar speculators in Karachi would have another issue for taking bets. This time the decision is not predictable. Political Pundits in Islamabad are of the view that if President Zardari would hasten to take the role of titular head of state as envisaged in the original 1973 constitution, his immunity would not be touched.

The moralists demand is that he should resign with all those who have pending cases against them. This is a just demand. Look what has happened in the case of Defence Minister Chaudhry Mukhtar who was not allowed to travel on an official visit to China. While it is a good example that for once nobody is above the law in the country, it is also disgraceful for the nation. What are we telling the world that we have entrusted the defense of the country in the hands of a minister who cannot be trusted to return home after the meeting. (This is aside from the fact that Ch. Mukhtar claims that inclusion of his name in the NRO list was a mistake and he has challenged it in court). The Prime Minister has taken action against the officials who were responsible for putting Defence Minister on ECL. I hope the court would let the executive do its job and give them their due constitutional space. At present there is a growing feeling that courts are being carried away with the hype built by the media.

It is because of such legal complications that usually civilised politicians resign when they are indicted in a case. But of course this happens in the countries that have democratic traditions and a neat balance among the three pillars of democracy. Alas! Pakistan does not fall in this category. The Interior Ministry which is supposed to put people on exit control list had barred its own minister from travelling abroad. If the Interior Minister has any grain of self-respect he should resign and face the trial. The defense taken by the ministers that they are only accused and not convicted is technically correct, but the practical issue is that by remaining in a position of power they can influence the case and would not be able to discharge their duties effectively.

People like us who supported the restoration of judges were hopeful that the higher judiciary will concentrate on tackling the corruption in the lower courts, but so far no visible change is seen. Don’t they say that charity begins at home? The common man suffers in the lower courts and seldom has the money to reach the superior judiciary.

Finally, having won all the laurels for giving the decision that hurts many in the sitting civilian government, the Supreme Court’s popularity graph is high. The Chief Justice and some of his colleagues have also the distinction of standing up to a military ruler. After the NRO the people would now be right to look up to the Supreme Court to take up Asghar Khan’s petition, in his life time, in which he had accused a number of politicians of taking slush money from ISI to form an alliance and defeat PPP in the elections. The then ISI Chief had also admitted that he had given this money and divulged the politicians names and amounts doled out to them. This case is much older than the NRO petition which stands disposed. A courageous decision would snub those who talk of selective justice in this country. It would also set an example for invisible soldiers to stay away from meddling in the country’s politics. It is their interference in politics to protect their dangerous national security policies that has damaged the country more than anything else. Clipping the President’s wings is not enough, whittling khaki angles’ power is important to bring this country out of the self-destruction mode. (ayazbabar@gmail.com)

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  1. #1 by Aijaz Ali on December 22, 2009 - 6:03 am

    Infact, analysis is good in shape. Linkage of events is obvious. Role of juciciary and its priorities are well-defined. The word “Selected Justice” fits in the context. CJ is,in my opinion, going to be controvercial in the days ahead. It is hard to make Sindhis believe that Choudry will deliver them equal justice, as the history has dealt toughly with their expectations.

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