Let me first describe the overall context in which the recent judgment was announced by the CJ Iftikhar Chaudary.
1. Politics and Courts — A historical perspective.
The courts of Pakistan (be it a session court or a supreme court) have always been the most active instrument in settling the political battles, historically however courts of Pakistan have played in the hands establishment to make or break the political governments. The courts have been used in two ways , first teaching a lesson to the politicians by instituting fake or real cases against them and then politicians spend their life (till they are back in government) in visiting the courts and getting the bails. I don’t have the full study with me however I recall that the average duration of a case in the lower courts of Pakistan may easily take 5-10 years. If a politician is lucky and gets the decision in the lower court (against him/her ) , he would then go to high court and then to Supreme Court all this process taking more than a decade.
Secondly , Supreme Court of Pakistan is used to settle the political questions and sometimes score by both government and establishment. In the name of “Interpreting the Constitution” and “Imposing the constitutional clauses” , the Supreme Court of Pakistan have been (mis)used by the establishment several times.
Curse of General Zia
Curse of General Zia will live long with us , both in the shape of terrorism and Jehadis as well as in the political/judicial arena in the shape of “Islamic clauses” in the constitution. Cleansing of the politicians in the form of Article 62,63 and I don’t know how many more , the Supreme Court of Pakistan have always been an active instrument to infringe the right of people of Pakistan to choose their representative.
Is it a political battle between two arch-rivals?
If NRO had any practical significance it is no more than political whip in the hands of PML-N to keep PPP on the back foot. And there is no harm in it. As a political force PML-N has every right to pressurize the government and tell the people about the corruption of the government members in order to gain edge the next elections.
However there have been question marks whether NRO is only that? Even Kamal Azfar in the Supreme Court told that the very well known forces are out there to destabilize the democratic system. And I have no doubt that these forces are not sitting idle , specially after the humiliating defeat in 2008.
Nayak or Khal Nayak?
It is 2005/2006 , Mr. Asif Zardari has been in Jail since the times of Mr. Nawaz Sharif, and it is now mad dictator’s era. The right wing political writers like Irfan Siddiqui , Haroon Rashid etc.. are all praises for Mard-e-Hur Asif Zardari. They meet him , congratulate him for standing against the mad dictator , and Ahtesab-ur-Rahman asks forgiveness , PML-N leaders like Khawaja Asif and many other talk about the political victimization and apologize for their short sightedness. Mard-e-Hur Asif Zardari is Nayak……….
It is 2009, NRO is still in place , the most corrupt person on earth who took the full benefit of NRO is no other than the president of Pakistan Mr. Asif Ali Zardari. The Khal Nayak…..
Let us look at the decision of Supreme Court of Pakistan in legal context.
I was reviewing the short order issued by the CJ , and two striking paragraphs I found in the order are (emphasis is mine):
14. In depth examination of the NRO suggests that it has not beenpromulgated to provide reconciliation on national basis as this nation has seen reconciliation in 1973,when a Constituent Assembly gave the Constitution of 1973 to the nation, guaranteeing their fundamental rights,on the basis of equality and brotherhood, as a result whereof, the nation had proved its unity, whenever it faced a challenge to its sovereignty and existence. The representation of the people, in subsequent Legislative Assemblies, has upheld the provisions of 1973 Constitution, except for few occasions when they have made amendments under peculiar circumstances. However, salient features of the Constitution i.e. Independence of Judiciary, Federalism, Parliamentary form of Government blended with Islamic provisions, now have become integral part of the Constitution and no change in the basic features of the Constitution, is possible through amendment as it would be against the national reconciliation, evident in the promulgation of the Constitution of 1973, by a Legislative Assembly.Therefore, promulgation of the NRO seems to be against the national interest and its preamble is contrary to the substance embodied therein. Thus, it violates various provisions of the Constitution
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;
Before I comment on the above paragraphs , let me say that only one reason was sufficient to declare NRO as invalid and illegal and that was since it was promulgated by an unconstitutional authority.
So the paragraph number 14 is very interesting, it makes some sweeping remarks which did not look as if made in correct judicial sense. I am not really sure what CJ and other Judges meant when they referred 1973 constitution as the basis for reconciliation in 1973. No doubt constitution of 1973 embodies the common will of majority of people of Pakistan but question is what reconciliation constitution has offered ? , I am not really sure how NRO could be similar to 1973 constitution in offering any reconciliation to the affected parties.
It is also interesting that the “new supreme court” of Pakistan still uses the “phrases and terminology” of the Supreme Court under the ever prevailing military mafia. Constitution of Pakistan has been amended by the military dictators for their own gains and they have never preserved the true structure of the constitution Sir!. There were no “Peculiar Circumstances” for changing the constitution , it was an outright rape of the constitution. I hope “new supreme court” of Pakistan keep in mind that restoration of judiciary has not absolved the past culprits from their sins. The mad dictator (Prevez Musharraf) was not the only culprit in raping the constitution.
And then term “national interest” , come on for once leave us from such terms… national interest!!!! Oh where is the mad dictator who always kept “Sab say pehle Pakistan”…
And finally look at the reference to the article 62 and 63 (the curse of another mad dictator).
Let me add that I consider that regardless of what Supreme Court had written in the order , NRO was supposed to go.