Dec 18, 2009

Revelling in justice

By Babar Sattar

Had the Supreme Court not struck down the National Reconciliation Ordinance as unconstitutional, we would have had to rethink the foundational values that inform our fundamental law and our union as a nation. But the manner in which the apex court dealt with legal challenges to this revolting piece of legislation and the outcome of the proceedings provides ample cause for optimism and cheer. This ruling addressed a constitutional question that had both legal and political facets. By seizing the NRO conundrum the Supreme Court has established that it will not shy away from its obligation to interpret the Constitution and uphold rule of law even in relation to the most controversial issues. But by confining itself to tackling legal aspects of the problem in a manner that doesn't produce partisan outcomes, our apex court has struck the right balance between activism and restraint.

Our reconstituted superior judiciary is putting to rest the fears of its detractors. The NRO proceedings were extremely fair and transparent, and the Supreme Court finally delivered a short order that responds to Pakistan's shrieking need for accountability while being jurisprudentially sound. The Chief Justice constituted a 17-member bench to hear the NRO petitions, which is unprecedented in our judicial history. Chief Justices have often exercised their authority and discretion to compose benches as a means to manipulate the outcome of judicial proceedings. By enabling the entire Supreme Court to sit and rule over an issue, the Chief Justice effectively took away his ability to control the outcome of the NRO hearings. For his judicial authority in this matter was no more than that of any other member of the bench. And the fact that the entire court spoke with one voice on an issue of crucial constitutional, moral, political and social significance cannot be overemphasized.

The Supreme Court's decision to declare the NRO unconstitutional and restore all affected cases to their pre-NRO status was widely expected. Jurisprudentially a significant aspect of the short order is that it held the NRO ultra vires of Articles 4, 8, 25, 62(f), 63(i) and (p), 89, 175 and 227 of the Constitution, and not necessarily Article 2(A) (the Objectives Resolution) that was forced into the Constitution by Ziaul Haq. The Objectives Resolution contains overbroad language that should never have been made an operative part of the Constitution. There was some speculation that the Court could possibly hold that Article 248 of the Constitution (that offers the president complete immunity from civil and criminal prosecution) is in conflict with Article 2A and further hold that since Article 248 is in conflict with the Objectives Resolution (that is akin to our Grundnorm), the presidential immunity needs to be watered down.

Such interpretation of the Constitution would not only have corrupted our jurisprudence but would also have made the case outcome Zardari-specific and thus questionable. Refusing invitations to indulge in any creative interpretation of our fundamental law that would immediately place the legal sword of Damocles over Zardari's head (as many detractors of the NRO would have desired), and reiterating that the NRO is illegal for being against guarantees of equality, prohibition of dishonesty, separation of powers and injunctions of our religion makes the court's decision balanced and sound. Fears that the court was out on a fishing trip at Zardari's expense asking piercing questions and straying from the legal questions raised by the petitions it was hearing have been proven unfounded.

But bringing back to life processes of accountability while faced with a ruling government actively performing the role of a clog is no walk in the park. The PPP-led government tried to oust Khalid Mirza when he took on the corporate mafia. It replaced the scrupulous, reputable and principled head of FIA, Tariq Khosa, when he refused to be coerced or cajoled by considerations of fear or favor while investigating the Steel Mill matter and the Firdous Ashiq Awan scandal, and wished to see Benazir Bhutto's original will in her murder case investigation. Further, the government has a proclivity to appoint individuals to key positions within the accountability machinery of the state who are incapable of doing their jobs because they are either spineless or thoroughly compromised. There is only so much justice that courts can dispense if other vital components of the criminal justice system are completely dysfunctional.

Faced with this dilemma the Supreme Court has done three things through the NRO trial. One, it has caused the disclosure of ugly details of corruption of pubic office holders and brought into public space information that no other tribunal or court could have forced out of the government. This will limit the ability of the government to hide facts from courts that will now be seized of the reopened NRO-related cases and encourage the media and civil society to scrutinize the conduct of government in view of the available information. Two, not being able to rely on the government to assiduously implement court orders and conduct effective prosecution, it has put in place a monitoring mechanism to supervise the progress of the NRO case that now stand revived.

And three, by declaring that the chairman and prosecutor general NAB are liable for misconduct and that Malik Qayyum acted unlawfully in withdrawing the Swiss cases against Zardari and should be proceeded against, and by publicly rebuking the acting Attorney General for hampering justice, the court has warned that the-dog-ate-my-homework-routine will no longer work and public servants will be held personally accountable for exercise of legal authority vested in them.

The challenge before us as a nation is daunting. We are struggling to reassemble moth-eaten machinery for accountability within a culture wherein defying the law is often the mark of status. The suggestion that corruption is a plague eating us up from within and needs to be confronted on war footing is either met with a look of disbelief from our ruling elites or vocal disdain. One argument one hears in private settings is that while the military has been plundering national wealth for decades, the entire country starts to jump up and down every time there is a civilian government in place. This is true. But it is an argument against selective enforcement of law and not in favor of tolerating corruption or offering unconditional amnesty to politicians.

The other argument in favor of looking the other way from the ruling government's corrupt ways is that it will 'destabilize the system'. We heard the same argument when we tried to oust our last dictator, when we struggled for restoration of the judges and now when we demand Musharraf's trial. This logic of expediency has been our bane for decades. The kind of instability that rule of law and accountability create is one that is indeed desirable and a prerequisite for positive change.

It is true that we need to establish effective civilian control of the military. But hatred for praetorians does not translate into acceptance of inept and corrupt politicos. Non-performing civilian governments might just be an excuse for military interventions, but they certainly sharpen the khaki savior instinct. Corrupt civilian governments and dictatorships are thus two sides of the same coin. We need to eliminate both through rule of law braced by political, legal and social accountability. This nation is under no obligation to protect the pride and shame of its corrupt leaders. We must not dither in allowing the trial of our president in a foreign court (while he continues to hide behind legal immunity in Pakistan), or putting our ministers on exit control lists. If they wish to parade around naked, their disgrace is personal. No nation falls from grace because it holds the mighty accountable.

But in this moment when we have rightly refused to be held hostage by a president and his cronies negotiating with the country by holding a gun to their heads, let us not forget that the author of the NRO is still running amok and needs to be brought back to justice.

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