Miscarriage of Justice or Abiding by the Law – Guest post by Peja Mistri


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…..

But…

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

and

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.


8 responses to “Miscarriage of Justice or Abiding by the Law – Guest post by Peja Mistri”

  1. Peja, you very rightly noted that the NRO debate is not a battle between PPP and PML-N, two arch political rivals.

    However, it IS a battle between two arch-rivals, i.e. GHQ and its foreign masters versus the political class of Pakistan. If might is right, then we surely know which party is likely to lose.

    Excellent analysis, Peja.

    ps: Let’s hope that CJ and the ‘new Supreme Court’ will care to examine General Musharraf’s charge-sheet against the alleged corruption of Chief Justice Iftikhar Chaudhry while contemplating the essence of Articles 62 and 63.

    Ameen and Aadil, my foot!

  2. I am Fully Agreed.I am waiting for the implementation of COD which will be a death to all PCO judges including present CJ and his co judges who are also PCO Judges under the oath of dictator Mush.But Nazu will make noise like buttocks .Nazu and Jamat-e-islami knows one thing to blame others.The party manifesto of Ji and nazu leaque is to blame others.They fuckers do not have any constructive manifesto to deliver the public.I think punjab is enjoying paradise life under the Tandour master Shahbaz.lolHe fucker invested all budget in Roti Susti package Aur roti tou susti nahi hoi .These bunch of fuckers wabt susti shurat.And punjabi media want to keep whole pakistan under his fucking extremist vision.They are making noise against ppp only because ppp may be become revolutionary party in future.These Zia bakiat do not ever let the ppp to operate freely..We all know the NRO bill is targetting a single national party PPP
    Jiye Bhutto

  3. From The Guardian:

    Editorial:

    Who profits from this? Rightwing members of the senior judiciary; sections of the military and intelligence establishment who regard Mr Zardari as too pro-American and want to stop him cracking down on the Afghan Taliban; and the opposition leader Nawaz Sharif. His own previous conviction was not covered by the NRO, but he profited from Ms Bhutto’s return to Pakistan by coming home from exile himself.

    and also these comments:

    Hobot:

    The judgement has been met with approval in Punjab only. The rest of the country is horrified at what Punjab is doing to Pakistan, yet again. If Asif Ali Zardari is forced out of office the consequences for Pakistan will be very serious indeed.

    sunking1966:
    The NRO judgment is the result of collaboration between the judiciary and the army as is widely believed by the knowledgeable sections of the society in Pakistan. A section of the media also pitched in by doing blatantly biased programs on its TV channel for the last two months. Laws have previously been challenged in Pakistan and nullified by the Supreme Court. The latest example was the declaration by the Supreme Court on 31st July 2009 that the PCO imposed by General Musharaf on 3rd November 2007 was ultra vires the Constitution. However, consistent with its previous judgments, Supreme Court saved all that was done under the PCO. What has happened with the NOR case is that the Surpeme Court, contrary to its previous judgments, has passed the judgment retroactively and set aside all the benefits taken under the NRO. Another dangerous precedent set up by the Supreme Court in the NRO judgment is its reliance upon the islamic provisions of the Constitution to nullify a law. These islamic provisions are higly subjective and by employing them, Supreme Court now weilds unprecedented powers as aganist the other two organs of the Government. These are the first steps towards a grand conspiracy by the establishment of Pakistan against the democratic forces particularly belonging to the smaller provinces of Pakistan.

    The petitions against NRO were filed before the Supreme Court in terms of Article 184 (3) of the Constitution which confers powers upon the Supreme Court to enforce fundamental rights granted by Articles 8 to 28. If the Supreme Court had simply referred to Article 25 (equality of citizens) for striking down the NRO, everybody would have been happy. But the way NRO has been struck by using islamic provisions of the Constitution, specially incorporated by General Zia, is very alarming. By doing so, the Supreme Court had itself violated the mandate conferred upon it by the Constitution. Similarly, by going specifically after President Zardari to the exclusion of the rest of 8000 beneficiaries of NRO smacks of political vandetta. Supreme Court was only examining the vires of the NRO on the touchstone of the fundamental rights conferred by the Constitution. It had no right to go into the merits of the individual cases. By doing so, it conveniently provided more fodder to a section of the media, which is already working quite openly against the Zaradari/PPP government. The Supreme Court also very conveniently forgot that President Zardari had already spent more than 8 years in jail, the maximum punishment under NAB Ordinance, without any conviction. Many interviews of Nawaz Sharif have been published where he has openly stated that the cases against BB and Zardari were established at the behest of the “Agencies”. In the recent NRO case too, it has come to light that the Ehtasab Bureau working under the then Nawaz Government was getting money from a secret fund. Now you don’t have to be a rocket scientist to know which “Agency” was that.

    my point is that SC could only have struck the NRO down on the basis of Article 25 of the Constitution. However, SC brought in aid Articles 62, 62 & 227 as well, containing islamic provisions, and thus travelled beyond its powers as contained in Article 183 (4) setting a dangerous precedent. As regards collaboration of army and SC, the way the proceedings were conducted in SC, the way Kerry-Lugar bill was opposed by the army and fully supported by the same media which then turned its guns towards NRO are ample proof that there is an unholy alliance between the army, the judiciary and a certain section of the media.

    Under Article 183 (4) of the Constitution, through which provision of the Constitution the challenge was made to the NRO, the Supreme Court was empowered to strike down the NRO on the basis of Articles 8 to 28 only. It could not have resorted to any other Article of the Constitution. But by bringing in Articles 62, 63 and 227, SC has left the door open for future challenges to President Zaradai’s candidature and this has been done without any legal justification. As regards the collaboration of the army, judiciary and the media, i am not making a legal argument; I am only drawiing an intelligent inference from the events of the last two months.

    vihang:
    let us see how long this judicial coup lasts. Though It has taken selective approch in targeting corruption, it is a good begining. I hope judiciary will cleanup ISI and army as well. But who will clean judiciary?

    Arrowhead:
    What a mess Pakistan is in; the judiciary are trying to topple the first elected government after 10 or so years of dictatorship; the economy is in ruins; Sindhi’s fighting Punjabi’s, Sunnis’ fighting Shias, the army is fighting the “BAD” Taliban, the Intelligence agency,(ISI) are still fighting a proxy war with India & Afghanistan using the “GOOD” Taliban and the Bolich’s are fighting both Pakistani army and now Iranians too!

    How long before these various groups start throwing nuclear bombs at each other…?

    If Pakistan had put all its effort it uses to fight into its economy, schools and infrastructure it surely would have been far better off and richer too!

    http://www.guardian.co.uk/commentisfree/2009/dec/18/pakistan-supreme-court-zardari

  4. I still couldn’t understand that why people party leaders are still with Zardari. Is this politics of truth, courage, patriotism or is it just merely eat and run. I agree most of the cases against this man are political motivated but Swiss courts are not approachable by Pakistani politician. Are those cases in Swiss courts are also politically motivated? These people come in power make money through kick backs and then fight for their posts. This is the politics of truth, patriotism, honesty, courage, caverly……………………..We miss you Jinnah