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)


8 responses to “16 Dec decision of Supreme Court – A Critical Analysis”

  1. Aamir Mughal Avatar

    NRO: How “Conveniently” Pakistani Media Forget OR try to show that they forget [Particularly The News]

    read and laugh OR LAMENT.


    How is it that those behind the deal-making based on this unconstitutional and illegal ordinance were not named and shamed/charged outright? Indeed, as reported widely at the time, the present chief of army staff was the DG ISI when the final draft of the NRO was being presented to Benazir in Dubai and was part of Musharraf’s team sent to convince her. Let us be grateful for small mercies By Kamran Shafi Tuesday, 22 Dec, 2009 http://www.dawn.com/wps/wcm/connect/dawn-content-


    Interestingly, General Kayani was the only senior officer present with President Pervez Musharraf when he had the historic meeting with Benazir Bhutto at the Musharraf palace in the suburbs of Abu Dhabi in July this year. Then he was the director general inter-services intelligence (ISI). General Kayani also took part in the interactions and deliberations with different political leaders, including Benazir Bhutto, for quite sometime till his promotion as the four-star general. The meeting at the Presidency was also attended by the prime intelligence agencies and other heads of the law-enforcement agencies. The initial report that was submitted to the high-level meeting disclosed that Benazir Bhutto was hit by the ball bearings of the suicide bomber’s jacket that hit and cut her jugular vain. It was not a bullet, president told at high-level meeting Friday, December 28, 2007 http://www.thenews.com.pk/print3.asp?id=11928

    Here’s what I wrote two years ago: “By now, the dynamics set in place by America seem immutable: what Washington wants, it gets. Never mind about the people of Pakistan and what they wanted. Benazir Bhutto made Washington her second home this summer. And it paid off. The State Department turned a brokerage house facilitating political deals between Bhutto and the Pakistan Army led by General Musharraf’s heir-in-chief, General Kayani. The broker, that is America, stands to reap huge dividends… Secretary of State Rice admitted that America was pressing General Musharraf “very hard” to allow for free and fair elections. When asked if Benazir Bhutto had a role in the future political setup, she answered, “Well, I don’t see why not”. When asked how the corruption cases against Benazir Bhutto would play into the new equation, Condi Rice deflected it by going off on a tangent: “There needs to be a contested parliamentary system, but whether or not she is able to overcome that and whether Pakistanis are willing to allow that is really up to them.” The reason for her gobbledygook response is now as clear as the blue sky. Washington was working around the clock to get Musharraf to pass an ordinance providing amnesty to Bhutto for her alleged corruption. And Ms Rice was the one pushing the general to go for it.” Last tango in Washington — II Wednesday, October 28, 2009 Anjum Niaz

    Pakistanís cadre of elite generals, called the corps commanders, have long been kingmakers inside the country. At the top of that cadre is Gen. Ashfaq Parvez Kayani, General Musharrafís designated successor as Army chief. General Kayani is a moderate, pro-American infantry commander who is widely seen as commanding respect within the Army and, within Western circles, as a potential alternative to General Musharraf. General Kayani and other military leaders are widely believed to be eager to pull the Army out of politics and focus its attention purely on securing the country. If Musharraf falls… Friday, November 16, 2007 US making contingency plans

    A former U.S. intelligence official who dealt personally with Kiyani says the ISI “took a lot of bad guys down” under his leadership. Kiyani has earned his boss’s confidence, even serving as Musharraf’s personal envoy in recent talks with exiled opposition leader Benazir Bhutto. The Next Musharraf A Westernized, chain-smoking spy could soon become the most powerful man in Pakistan. By Ron Moreau and Zahid Hussain | NEWSWEEK From the magazine issue dated Oct 8, 2007 http://www.newsweek.com/id/41883


  2. farrah shah Avatar
    farrah shah

    so in the city of forty thieves ,Ali Baba should be avenged.

    because it is forty thieves who are Democratic representatives.The NRO happened ,people voted for thieves and

    now what are we not trying to replace one thief with another.

    Tell me in Pakistan today who was in power and had not stolen the public money.

    The present scenario in Pakistan to run after personalities like Zardari and Musharraf is it not the vengeance.

    Nowhere in the world X presidents and Prime ministers are humiliated the way in Pakistan.

    Was Musharraf worst than George Bush in USA.Musharraf did a lot of right things during his time…….all is not bad.

    Many of the cases against Zardari were made during the Nawaz time.

    Our sense of justice is still like of Maula Jut and Gandasa.

    Public has learnt to resist military rule.

    Public has learnt about Zardari cases……..but tell me one thing was public not aware of Zardari cases?

    Was public not aware of NRO?

    But public has some sense of common justice in their minds,the way both men are hounded does not make men chasing them pious ones.

    We know the reality of them as well.For fifty years we know how people governed Pakistan.

    I am not giving any excuse in the defence of Zardari or Musharraf but bringing Musharraf back to face the trial will

    humiliate the profile of army?

    A public which accepted Zia rule ten years for murdering Bhutto ?where is Justice for that?

    Zardari can face the trials once he is out of office.

    Small truths make us to speak up bigger ones make us silent.

  3. farrah shah Avatar
    farrah shah

    Reality is people of Pakistan were safe and sound during Musharraf time and propereos too.Wipe this fact .

    Fact of ordinary persons life is PPP is loved by people.

    Now how do you want to change this?

    Fact is also a vast majority of Pakistanis like Zia rule.

    Fact is people of Pakistan know civil governments are corrupt governments how would you change this.

    If the wrong of Justice taking oath as a PCO is right today than why rest is wrong?

  4. Aamir Mughal Avatar

    One has to be politically quite naive or a paid journalist (it does not matter by which agency, IB or the ISI) to eulogise all this as the triumph of justice or some rubbish like that. Why doesn’t the Supreme Court order the ministry of information and broadcasting to publish the names of all those media persons who have been the beneficiaries of secret funds during the past 20 years? Why does only the PPP (not that it is innocent) have to face ‘accountability’? The establishment strikes back By Yousuf Nazar Saturday, 26 Dec, 2009

  5. farrah shah Avatar
    farrah shah

    i do not know where our lament for overnight Democracy and set the things right overnight will take us.
    We are plunging fast without any parachutes where we will land I do not know and that is the feeling of every Pakistani.
    What awaits us tomorrow.I give six months to Nawaz if he comes to power but before that the way all things are going and this military option is unthinkable what will happen?
    …..and the voice of commoner is not heard .Journalists,politicians and adalia is making their own decisions………only one year ago people had debates on this blog now it is only three people ……..this speaks alot……

  6. farrah shah Avatar
    farrah shah

    Muzbout adalia,azad akhbar ,jamhuree hakumat but where is the voice of people……..??????/

    choked in smoke,blown away in blasts ,black water or white ….life remains same for Pakistanis.

  7. Tom Meinberg Avatar

    Am I able to take any other medicines while using this?