By B. Civilian
The full bench of the Supreme Court (SC) of Pakistan unanimously declared the National Reconciliation Ordinance (NRO) null and void, ab initio. In view of the unpopularity of the Ordinance, the PPP government had virtually disowned it over the last few weeks. The Federation decided not to defend it in the court, again, regardless of one of its lawyers insinuating that there was a threat to ‘rule of law’ from “CIA and the GHQ” (statements which the lawyer later withdrew as his own rather than his client’s view).
Pakistan is in the process of transitioning from being a military dictatorship to becoming a democracy. It’s a difficult transition for any country, let alone for one which has attempted such a transition at least twice before, without much success. But today Pakistan is waging two definitive wars at the same time – one for democracy and the other against terrorism. The latter is often described as an existential war. We are trying to define ourselves at the same time as we are trying to ‘exist’; survive and prevail over those murdering us on a daily basis.
In this difficult transition, mistakes and worse are not entirely surprising. The military which is fighting bravely against the terrorists has not surrendered or retreated as much as we would have liked from the other war – that for a civilian and democratic state. Most recently and blatantly the Corps Commanders’ Conference came out with a unanimous criticism of the Kerry-Lugar Bill. The military establishment acted in contravention of the organisation’s constitutional role. Yet, not many found anything too abhorrent about the generals’ attack on the civilian government.
The military trying to give their interference a veneer of false dignity by articulating its belief that it was for Parliament to give the final verdict on KLB, did not make the act any less unconstitutional and wrong. It is for the government or for Parliament itself, where the government enjoys a majority, to bring the KLB into the House for debate. The government is not bound by any law to seek Parliament’s approval for KLB. None of it, in any case whatsoever, is any business of the military.
The military’s overstepping the constitutional mark was justified by many by citing the Government’s failure in doing its homework in taking the military leadership into confidence on KLB. If the Government indeed did fail to seek and ascertain the military’s view, it was incompetence. But what is important to note is that after decades of military rule and influence, not only did people fail to see the important difference between incompetence and illegality, they exclusively focussed on the incompetence. No one cared that the executive had all the authority to be as clumsy as it wished to be. More alarmingly, no one doubted the Corps Commanders’ ‘authority’ to question the executive’s legal and constitutional prerogative. Most people forgot that a tactless executive does not lose its legitimacy; not until it is kicked out by the electorate in a free and fair election.
Pakistan’s return to democracy owes a large debt of gratitude to the Lawyers’ Movement. Mr Zardari, thinking he could outsmart everyone by lying outright – at Murree and then at Dubai, was not able to stall the demand of the Lawyers’ Movement for more than a year. The judges illegally removed by Gen Musharraf had to be reinstated by Mr Zardari at the self-inflicted political cost of the Long March. Nawaz Sharif championed the cause of restoration of the judiciary and Gen Kayani brought the standoff of the Long March to a ‘resolution’. Mr Zardari had to reluctantly do what he should have done at the outset. Instead he had to do it after needlessly losing both credibility and political stature.
Indeed, Benazir Bhutto should have known that she did not really need the NRO. She should have realised that the political cost of the less than guaranteed comfort of the NRO would prove to be too high. Some analysts have argued that it was Mr Zaradri who wanted and insisted on the NRO. Benazir Bhutto only wanted the two-term ban to be lifted for Premiership. While it was clear that Benazir at 54 was more mature and more formidable a politician than Benzair aged 35, it is doubtful that she was wise enough yet to say No to the NRO.
The PPP CEC meeting in the aftermath of the NRO verdict has been a positive sign. It seems that Mr Zardari might eventually have realised that cunning, deception and denial can only take you so far. That it is time for PPP leaders to be real politicians and do what real, hardworking politicians do. They have wasted enough time rather needlessly sparring with the media (and the knots they kept tying themselves in as a result, e.g. PPP nincompoops citing Zardari’s long incarceration, instead of his innocence until proven guilty, as a defence!).
Avoiding their day in court has proven to be equally futile, wishful thinking. It sounds like Mr Aitizaz Ahsan, in the CEC meeting, has helped convince them that they should have more confidence in themselves and, equally importantly, in the electorate. If they have nothing to hide, they should have nothing to fear, regardless of the people and the media’s tendency to presume them guilty until proven innocent. Mr Zardari himself enjoys the Presidential immunity, of course… for as long as he remains in office (unless the SC ends up changing the relevant law).
Benazir Bhutto and her husband might well have feared the progress of the appeal in the Swiss case. She probably would have needed to cut some sort of deal with Musharraf to have the threat of the Swiss case removed. But did she need the NRO for that? Malik Qayyum, the Attorney General could have been instructed by Musharraf to write the same letter, that the SC now has presumed was written as a result of the NRO. Such a deal would have given no worse a guarantee to the accused in relation to the Swiss case, without the political cost Mr Zardari and his party has ended up having to pay for the NRO. Such a deal would not have required a Presidential Ordinance.
Any alleged malafide in relation to such a deal would have had to be proven in a court of law. Again, it would have offered no worse a protection than the NRO, at a fraction of the political cost and embarrassment. Moreover, it might have made a minimum understanding with Nawaz Sharif easier, without something as big as a constitutional amendment, i.e. NRO, making both parties think they must dig in their heels on. A basic understanding between the two main political parties on the importance of saving and protecting democracy is the last thing that those who are not prepared to take second place to democracy wish to see.
As it happens, the SC took it upon itself to go into a ‘factual’ investigation of Malik Qayyums’ actions in relation to the Swiss appeal, in any case. It would seem that the court decided to go well beyond the question put before it by the Petitioner. In fact, the judgment, based on the Short Order, has far too many contradictions, even absurdities, and clear attempts by the court to step beyond its constitutional role.
The restored SC is a tremendously powerful one. It should have understood that this was, and is, the worst time for it to project its power further than strictly constitutional and necessary. This is the time to consolidate its newly gained power and prestige by being conservative, not to try and expand it even further.
The NRO should never have been law. Having been made law through an executive order, it had little hope of surviving judicial examination. But what is worrying is the SC’s attempt to encroach on the executive’s prerogatives.
Did the court need to go as far as practically taking on the role of a new NAB? Are the relevant laws not enough to regulate the conduct of the state as prosecutor? Is it right for the court to expand its role into ‘monitoring’ the executive’s role as prosecutor? Is there not a danger that this overstepping the mark by the court will backfire, and by practically taking on the role of a new NAB it will end up bringing itself into the same disrepute as did the original NAB and the Ehtesab Bureau before that?
Those who claim that the court is more clearly independent and non-partisan than the Ehtesab Bureau and NAB forget that the court cannot be both prosecutor and judge; Not in a common law country that ours is. The court itself has recognised the ‘trichotomy’ of our system and pledged to uphold it. While finding the NRO as violating Article 175 of the Constitution, the court goes a bit overboard in aspects of its verdict and itself is in danger of violating the same Article.
This transgression on the court’s part might well have the best intentions behind it, but it did not take place in a vacuum. There is both a political and historical context. The cause of the restored judges was championed by Nawaz Sharif and stonewalled by Zardari. There is an appearance of conflict of interest that ought to have caused the court to act more cautiously than usual. Moreover, the NRO verdict has come soon after the military’s blatant interference on the issue of KLB. The public debate over the past few months had dwelled on Musharraf being tried for treason. Then the public agenda changed to KLB with the military defying the constitutional government. Next the public debate moved to the NRO, followed by the SC verdict.
The SC had started it’s two year journey to popularity on the back of Chief Justice Chaudhry taking a personal interest in the plight of ‘missing people’. Since it’s restoration, the CJ and his court have all but forgotten about the ‘missing persons’. Is it all that surprising that some people think this is the result of some sort of a deal? The SC was more interested instead in poking its nose in the finance bill, the most important of all affairs of state, by striking down the carbon tax on petrol. The executive, unsurprisingly, got its own way through an Ordinance the next day. And now we have this ill-thought out and badly worded verdict on the NRO.
It is not the suo moto power-holding CJ alone that has given himself this additional power to regulate prosecutors and prosecutions. The verdict says that “a Monitoring Cell shall be established in the Supreme Court of Pakistan comprising of the Chief Justice of Pakistan or a Judge of the Supreme Court to be nominated by him to monitor the progress and the proceedings in the above noticed and other cases under the NAB Ordinance. Likewise similar Monitoring Cells shall be set up in the High Courts of all the Provinces comprising of the Chief Justice of the respective Province or Judges of the concerned High Courts to be nominated by them to monitor the progress and the proceedings in cases in which the accused persons had been acquitted or discharged under Section 2 of the NRO.”
So the court has added to its role of interpreting law and applying it to a given set of facts, the power to pre-emptively implement its own decisions through active participation through what it calls ‘monitoring’. It has decided to tell the executive who it should hire and fire. Individual prosecutors have already been ‘put on probation’ by the court, while the executive has been ordered to replace them. The prosecutors have to give the courts, in their role as ‘monitors’, “periodic reports for the actions taken by them”.
The court seems to be unsure what it is exactly that it wishes to accuse Malik Qayyum of. It is unclear whether Qayyum withdrew support to the Swiss prosecutors without authority as per Article 100(3), or in compliance with the relevant sections of the duly enacted NRO. The fact that it was declared void ab initio, means that all acts and orders under the NRO are deemed to have no legal effect. But how can an official following the provisions of the NRO before the verdict be found guilty of any wrongdoing?
The court seems to have contradicted itself, rather unnecessarily, in claiming the NRO ultra vires of the constitution and yet giving Parliament, under its decision of 31 July 2009, the option to ratify the NRO. The present verdict states that “while supporting the doctrine of trichotomy of powers, as envisaged in the scheme of the Constitution and to prevent any disruption, enabled the Parliament to reconsider and, if thought fit, to enact, all the 37 Ordinances including the NRO, as Acts of Parliament. For this purpose the life of the Ordinances stood extended for another 120 days (in case of Federal Legislation) and 90 days (in case of Provincial Legislation).” The court further claims that “[t]his constituted an opportunity to the democratic Government at the Centre and in the Provinces to legitimise the acts, actions, proceedings and orders, initiated, taken or done, under those Ordinances, by placing them before the Parliament, to make them enactments of Parliament, with retrospective effect.”
The question has to be asked: Had Parliament utilised the opportunity given it by the SC and ratified the NRO, was the court going to form a different view as to its legality? Why give the legislature the opportunity if the ‘legislative judgment’ objection was to stand? Or was it unacceptable for the executive – that is, the President – to pass a legislative judgment and not for Parliament? Is it the principle that is being upheld, or is it just the method that is being objected to?
Would the court have accepted the ‘Reconciliatory’ aspect of the NRO had it been an act of Parliament? The court would have had to consider it ‘reconciliation’ substantially at par with the one achieved by the 1973 Parliament, to justify allowing a duly ratified NRO to override several articles of the 1973 Constitution that the court finds it in conflict with.
Such worries about the verdict become more critical given the context where the restoration of the present SC had become a partisan issue. And that the issue was resolved by the interference of the military establishment in favour of restoration. It would have been wise and prudent of the judiciary to ensure that it stayed well within its constitutional boundaries in striking down the NRO. If there are suspicions in some quarters about the court being partial, this lack of prudence is to blame. And if there are conspiracy theories about the historically powerful military establishment dictating its wishes to the court, then again it’s the same shortcomings of the verdict that are to be blamed (in addition to the timing of the military’s KLB-related interference). Of course, if these conspiracy theories are more than just that, then the court’s share of the blame is no more than that of a mere accomplice.
The timing of the KLB fiasco has meant that the military is the (merely) coincidental beneficiary of this verdict, nevertheless. Now there are calls that the SC should proceed with bringing the Mehran Bank case to a conclusion, as well as bring all the perpetrators of the shameful attack on the SC to justice. The Government announced today that it intends to publish a list of loan defaulters, its spokesperson claiming, with a smirk, that the list includes ‘some big names’. When the politicians have beaten each other into the ground, and the SC rendering itself vulnerable to accusations of partiality, there will again be only one institution which would remain standing. And yet again, the military’s gain would be merely coincidental.
It’s a legacy of military dictatorships, disrupted by periods of controlled democracy, that we look for shortcuts. We have neither developed an appreciation of the value of a robust system nor the patience to develop and strengthen one through a necessarily long evolutionary process. Having been disappointed by military dictators promising (self-serving) accountability of politicians, we are now looking to the judiciary to provide the short-cut to the resolution of our myriad problems. In our impatience we recklessly overlook the dangerous undermining of the system and rule of law. We forget that only an inclusive democracy has the best chance of coming up with solutions to the complex problems of a diverse country like ours. No one party, group or organisation can fathom, let alone resolve, the complexities. Democracy is our best hope that the sum might just be, at times, greater than the parts. But this requires patience, tolerance and trusting each other. There are no short-cuts. There will be no Messiahs; no Moses to sort out the Pharaoh. Only a robust system will give us stability and continuity. Such a system will not develop overnight. It will take time and demands dedication, vigilance and even sacrifice from all of us, and from each generation. Parts of the SC’s verdict seem to indicate that it lost sight of its duty as far as respecting and strengthening the system is concerned.
The NRO Case Verdict: Text of the Short Order
“Therefore, by means of instant short order, reasons of which shall be recorded later, we hold as follows:-
(i) that the NRO is declared to be an instrument void ab initio being ultra vires and violative of various constitutional provisions including Article Nos. 4, 8, 25, 62(f), 63(i)(p), 89, 175 and 227 of the Constitution;
(ii) that as a consequence of the said declaration, all steps taken, actions suffered, and all orders passed by whatever authority, any orders passed by the courts of law including the orders of discharge and acquittals recorded in favour of the accused persons, are also declared never to have existed in the eyes of law and resultantly of no legal effect;
(iii) that all cases in which the accused persons were either discharged or acquitted under Section 2 of the NRO or where proceedings pending against the holders of public office had got terminated in view of Section 7 thereof, a list of which cases has been furnished to this Court and any other such cases/proceedings which may not have been brought to the notice of this Court, shall stand revived and relegated to the status of pre-5th of October, 2007 position;
(iv) that all the concerned courts including the trial, the appellate and the revisional courts are ordered to summon the persons accused in such cases and then to proceed in the respective matters in accordance with law from the stage from where such proceedings had been brought to an end in pursuance of the above provisions of the NRO;
(v) that the Federal Government, all the Provincial Governments and all relevant and competent authorities including the Prosecutor General of NAB, the Special Prosecutors in various Accountability Courts, the Prosecutors General in the four Provinces and other officers or officials involved in the prosecution of criminal offenders are directed to offer every possible assistance required by the competent courts in the said connection;
(vi) that similarly all cases which were under investigation or pending enquiries and which had either been withdrawn or where the investigations or enquiries had been terminated on account of the NRO shall also stand revived and the relevant and competent authorities shall proceed in the said matters in accordance with law;
(vii) that it may be clarified that any judgment, conviction or sentence recorded under section 31-A of the NAB Ordinance shall hold the field subject to law and since the NRO stands declared as void ab initio, therefore, any benefit derived by any person in pursuance of Section 6 thereof is also declared never to have legally accrued to any such person and consequently of no legal effect;
(viii) that since in view of the provisions of Article 100(3) of the Constitution, the Attorney General for Pakistan could not have suffered any act not assigned to him by the Federal Government or not authorised by the said Government and since no order or authority had been shown to us under which the then learned Attorney General namely Malik Muhammad Qayyum had been authorised to address communications to various authorities/courts in foreign countries including Switzerland, therefore, such communications addressed by him withdrawing the requests for Mutual Legal Assistance or abandoning the status of a Civil Party in such proceedings abroad or which had culminated in the termination of proceedings before the competent fora in Switzerland or other countries or in abandonment of the claim of the Government of Pakistan to huge amounts of allegedly laundered moneys, are declared to be unauthorized, unconstitutional and illegal acts of the said Malik Muhammad Qayyum;
(ix) that since the NRO stands declared void ab initio, therefore, any actions taken or suffered under the said law are also non est in law and since the communications addressed by Malik Muhammad Qayyum to various foreign fora/authorities/courts withdrawing the requests earlier made by the Government of Pakistan for Mutual Legal Assistance; surrendering the status of Civil Party; abandoning the claims to the allegedly laundered moneys lying in foreign countries including Switzerland, have also been declared by us to be unauthorized and illegal communications and consequently of no legal effect, therefore, it is declared that the initial requests for Mutual Legal Assistance; securing the status of Civil Party and the claims lodged to the allegedly laundered moneys lying in foreign countries including Switzerland are declared never to have been withdrawn. Therefore the Federal Government and other concerned authorities are ordered to take immediate steps to seek revival of the said requests, claims and status;
(x) that in view of the above noticed conduct of Malik Muhammad Qayyum, the then learned Attorney General for Pakistan in addressing unauthorized communications which had resulted in unlawful abandonment of claims of the Government of Pakistan, inter alia, to huge amounts of the allegedly laundered moneys lying in foreign countries including Switzerland, the Federal Government and all other competent authorities are directed to proceed against the said Malik Muhammad Qayyum in accordance with law in the said connection;
(xi) that we place on record our displeasure about the conduct and lack of proper and honest assistance and cooperation on the part of the Chairman of the NAB, the Prosecutor General of the NAB and of the Additional Prosecutor General of the NAB, namely, Mr. Abdul Baseer Qureshi in this case. Consequently, it is not possible for us to trust them with proper and diligent pursuit of the cases falling within their respective spheres of operation. It is therefore, suggested that the Federal Government may make fresh appointments against the said posts of persons possessing high degree of competence and impeccable integrity in terms of Section 6 of the NAB Ordinance as also in terms of the observations of this Court made in the case of Khan Asfandyar Wali v. Federation of Pakistan (PLD 2001 SC 607). However, till such fresh appointments are so made, the present incumbents may continue to discharge their obligations strictly in accordance with law. They shall, however, transmit periodical reports of the actions taken by them to the Monitoring Cell of this Court which is being established through the succeeding parts of this judgment;
(xii) that a Monitoring Cell shall be established in the Supreme Court of Pakistan comprising of the Chief Justice of Pakistan or a Judge of the Supreme Court to be nominated by him to monitor the progress and the proceedings in the above noticed and other cases under the NAB Ordinance. Likewise similar Monitoring Cells shall be set up in the High Courts of all the Provinces comprising of the Chief Justice of the respective Province or Judges of the concerned High Courts to be nominated by them to monitor the progress and the proceedings in cases in which the accused persons had been acquitted or discharged under Section 2 of the NRO;
(xiii) that the Secretary of the Law Division, Government of Pakistan, is directed to take immediate steps to increase the number of Accountability Courts to ensure expeditious disposal of cases;”