16 Dec decision of Supreme Court – A Critical Analysis

By Barrister Amjad Malik

16 Dec Supreme Court short order was an expected response of superior judiciary. Federation and all provinces through their lawyers jointly consented to its repeal, and none came to rescue the beneficiaries and even academic discussion was not made possible on the topic of powers to issue and right course of action to dispose off a bad law. 342 members of the Parliament jointly expressed their unwillingness to discuss and vote out this notorious ordinance despite the fact that it relates to them and their future on the whole as a club, and any order would have far reaching implications on the future of their brethrens good or bad. In that situation, what do you expect from judges.

They could not invent a defence for that ordinance so hated by the majority of the people, media and intelligentsia. If politicians were expecting leniency or a different judgment, its their own fault, and the problem lies with their capacity or capability not with the short order of the Supreme Court of Pakistan. On 5 August the writer in response to 31 July 09 decision which scrapped Gen Musharraf’s 3rd Nov PCO and emergency and wrote,

“Overall, a welcoming order, full of happy tidings, but similar amount of flaws, unaddressed anomalies, and legal circles expect a lot more explanation in detailed judgement, and I hope the order does the job in the end. This order is also reflection of various ‘compulsions’ under which Pakistani society goes through daily. The short order incites that there is more to come, and a detailed judgement will open a lot of avenues for further litigation. On the outset, Superior Court is mindful of the limitations they are working under and one can say that the decision has set the track on which SC is likely to go in near future. However, it is not a final decision, this is part of a series of decisions we must expect in the days to come”.

All took it lightly, as they did not read between the lines that NRO has gone and did not react promptly. Mindful of the awaited details of the full judgement of SC in the current case, I will touch a few aspects of the order which are core issues to the nation, namely NRO, NAB, and Swiss cases.

1) NRO:

SC ordered on the day 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’; Generally speaking ‘NRO’ is a bad law and discriminatory on the altar of Art 25 of the constitution which says that all are equal in the eyes of law and there can be two different treatments to one who is serving sentence and the second getting pardon on a criteria unknown to commoners. Having said that due to polarisation, a South African style ‘truth and reconciliation’ may be a good idea to start from somewhere for Pakistan, however, a selective pardon from criminality cannot be justified under any provision(s) in the statute books.

A few stalwarts and so called human rights experts, though agree with the judgement, but are objecting rejection on a few Islamic clauses, especially, Article 62(1)f which expects a member of Parliament to be a ‘sagacious, righteous, and non –profligate and honest and amen’, but that is for the Parliament to judge whether people wishes to retain such clauses or not, but whilst these clauses are in the constitution and statute books, SC has every right to adjudicate on the basis of their presence a law which may bring arbitrary benefits to those undesired by the constitution administratively. None picked an issue on parliament for their failure to reject or select this ordinance.

Mr. Justice Dogar declared through a judgement in 2007 (Qazi Hussain vs Federation) declared that Article 62 &63 does not apply to Presidential election , and thus nation witnessed General Musharraf got elected in uniform as the President of Pakistan, that anomaly needed to be corrected otherwise in future uniformed or insane undergraduates will qualify to be the head of state which is not at all desirable.

On eligibility criteria, if Article 62 (1)f exists in status books, SC has every right to see if the beneficiaries who are disqualified on the basis of available clauses, will qualify due to the benefits deriving out of the National reconciliation Ordinance. Disqualification of any member of Parliament is rightfully a job for the election commissioner at the time of election, and or later challenged through heads of their parties, but human right activist just saw that clause from the glass of their wine alone and took it as a personal criticism rather than doing a balancing exercise between a bad law and the benefits to its beneficiaries, and damage to the trust of the nation and public purse. I think they may agree that General Musharraf had no power to pardon criminality of a few and attempt to turn thieves into saints assuming the responsibility that of the collective wisdom of the Parliament.

Mindful of that, whilst abolishing 270aaa, those ordinances which expired, technically were knocked out automatically after expiry of their limitation of 120, 90 days respectively under Article 89 & 128 of the 1973 Constitution. President, or Governor may reissue, and legislating to make it permanent law is the remit of the Parliament alone. SC allowed expired ordinances which were fallen once the PCO was fallen, and It was my humble opinion, that its akin to reissuing & I feel strongly that, this is the power of issuing authority and or Parliament, and SC should have abstained using their inherent power to extend a grace period. My reasoning is that when 270aaa (2nd PCO of Gen Musharraf) goes all those actions which were attached to it goes with it, whether it was Islamabad High Court, judges qualifying age and or any ordinances, they all go with the PCO. One cannot have both ways. Judgements of Superior courts are not bound by any compulsions and or ‘law of necessity’ and are not political decisions, they are and must seem to be in accordance with the law & constitution.

2) The major issue was of the NAB its chairman and Prosecutors.

My view on the NAB issue is that once SC forms a view 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”, then SC further recommended that , “It is therefore, suggested that the Federal Government may make fresh appointments against the said posts.” I am again with respect trying to look for wisdom mindful of the fact that it is a judgement of the highest court, that when once SC declared those dignitaries by name as dishonest which in itself is misconduct, then how can they go one step backwards, and allowed those functionaries to continue with their jobs despite being dishonest with the highest court(s) in the past when it said in the same para, “ However, till such fresh appointments are so made, the present incumbents may continue to discharge their obligations strictly in accordance with law”.

SC further recommended, “ 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”; SC can monitor cases of the accountability courts, which is their junior courts under their purview and supervision but the impression was created with the para 10 as if SC is going to monitor the whole accountability process by asking to sack the NAB chief and its prosecutor general and others, giving remarks about top legal aide of the Govt (A-G) and making further recommendations towards their appointments. To me, that is the remit of the executive, and any corruption free executive authority which is coupled with good governance must not be challenged and or interfered by any other institution except Parliament. Its not judiciary’s function to appoint or recommend executive organ’s heads or to determine sugar or vegetable prices, its the job of the executive who is answerable to Parliament. It’s a rightful job of the SC to interpret the constitution and law, and settle major disputes between provinces and remove a deadlock, but Supreme court must be careful in the current climate as a little advancement on the borderline may jeopardise this new baby democracy and robust judiciary unintentionally may start enjoying the powers of the executive which is weaker due to a gentleman premier whose powers are high jacked somewhere in presidency so patience is the game.

On the whole, its politicians internal weakness too that matter unfortunately came to judges, I will call it gross misjudgement, and negligence where they underestimated current climate, media and judiciary where corruption free democracy ranks top on nation’s agenda. They should have capped NRO in the parliament and replaced it with new ‘Accountability commission’ headed by a man of stature the likes of Justice Wajeeh uddin, Fakhur uddin G Ibrahim or Ali Ahmed Kurd with consensus who can offer unbiased, impartial and honest accountability of all at sundry as was chartered by both former premiers, with a new law to curb corrupt practices whilst at public office ensuring and boosting public confidence on politicians and corruption free administration and set up a ‘truth and reconciliation commission’ separately to filter all backlog of cases addressing the anxiety of public and grievances of the accused, some of whom have served sentence for years, and presumption of innocence could have been maintained until proven guilty by a court of law. To me, NRO should never have been allowed to come before the court.

3) Swiss cases:

Supreme Court Order at para IX said as following, “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;”

It must be said that there is a presumption of innocence until proven guilty. The allegation that in the Cotecna & SGS references, former prime minister Benazir Bhutto and her husband President Asif Ali Zardari are accused of taking commissions which was paid to off shore companies accounts allegedly owned by President Zardari and others. There has been hectic litigation on the subject and matters are under purview of the Supreme Court, NAB court and foreign court(s). As the accused is currently a head of state, there is a possibility that despite the judgement , due to immunity under Art 248 of the Constitution and Govt of Pakistan’s inaction due to limitation(s) similar attitude is meted out in Switzerland because the accused enjoys immunity from criminal prosecution as a head of state, but once the conviction is revived (if it exists) upon Govt’s request, there is no impediment to claim and recover the alleged $60 millions belonging to the Govt of Pakistan.

One cannot rule out international interlocutors role too who were at forefront in seeking stay of those proceedings and were negotiating deals whilst the NRO was being issued, but none has a right to deprive Pakistan of their rightful civil claim even if criminal prosecution can not be ensued due to legal reasons, there is no harm in recovering money belonging to Pakistan, and looking at the judgement, Supreme Court in Para 9 has just done that. But in the Para 9 whilst reprimanding Justice Malik Qayyum, Supreme Court has not condemned even for once the issuing authority and or the then General Pervez Musharraf as if the whole story is about him, but there was no mention of him. It is injustice with the story and the characters in it, that the author of the whole Saga, the outgoing military dictator was not mentioned at all, who came to rid corruption on 12 October 99 from Pakistani society, when returning gifted the nation with NRO, a selective pardon order depriving officially the public purse of billion and let loose those who were barred to enter in sacred places.

In conclusion, generic judgement is a good sign for the state, but person specific judgement does hurt common interest, as once we open indemnity clauses wily nily, the state may come under pressure at sometimes in future and we may see Baluch rebel leaders issuing writs for arrests of the sitting Ministers and head of state abroad for crimes against humanity and or for torture as was the case with one of Israeli foreign ministers so we must be careful whilst stripping out rightly the international protection enjoyed by a head of state. Keeping Mr. Zardari at front is not at all in the state interest, but its state machinery failure that he was allowed to contest at all for the slot at first place but who cares, people are stuck in their internal mind games and all eyes are on personal gains not on national embarrassment or disadvantages.

Overall, its a welcoming judgement and Pakistani executive is bound to follow the orders of the Supreme Court under Article 190, they must seek political solution rather than retaliating against the lawful order of the court and their future depends on their politicking not on their unlawful reactions and unbridled freedom of expression against a valid, lawful court order duly promulgated and published by the highest court of law of Pakistan. Well done Supreme Court, at least you have given message that corruption is no more.

Barrister Amjad Malik is a chair of Association of Pakistani Lawyers (UK)