Pakistan: ASMA Jahangir's View On The Verdict Of Supreme Court Against National Reconciliation Ordinance
There is thunderous applause for bringing the accused plunderers and criminals to justice and widespread speculation on
the resignation of the president. Very little analysis is being done on the overall effect of the judgment itself.
While, the NRO can never be defended even on the plea of keeping the system intact, the Supreme Court judgment has wider
political implications. It may not, in the long run, uproot corruption from Pakistan but will make the apex court highly
controversial.
Witch-hunts, rather than the impartial administration of justice, will keep the public amused. The norms of justice will
be judged by the level of humiliation meted out to the wrongdoers, rather than strengthening institutions capable of
protecting the rights of the people.
There is no doubt that impunity for corruption and violence under the cover of politics and religion has demoralised the
people, fragmented society and taken several lives. It needs to be addressed but through consistency, without applying
different standards, and by scrupulously respecting the dichotomy of powers within statecraft. In this respect the fine
lines of the judgment do not bode well.
The lawyers' movement and indeed the judiciary itself has often lamented that the theory of separation of powers between
the judiciary, the legislature and the executive has not been respected. The NRO judgment has disturbed the equilibrium
by creating an imbalance in favour of the judiciary.
The judgment has also sanctified the constitutional provisions of a dictator that placed a sword over the heads of the
parliamentarians. Moreover, it has used the principle of 'closed and past transactions' selectively.
It is not easy to comprehend the logic of the Supreme Court that in a previous judgment it went beyond its jurisdiction
to grant life to ordinances -- including the NRO -- protected by Musharraf’s emergency to give an opportunity to
parliament to enact them into law.
If the NRO was violative of fundamental rights and illegal ab initio, then whether the parliament enacted it or not it
would have eventually been struck down. By affording parliament an opportunity to own up to the NRO appears to be a
jeering gesture unbecoming of judicial propriety.
The NRO judgment has struck down the law also for being violative of Article 62(f), which requires a member of
parliament to be, 'Sagacious, righteous and non-profligate and honest and ameen'.
Hence, the bench will now judge the moral standing of parliamentarians on these stringent standards set by the notorious
Zia regime. This article of the constitution has always been considered undemocratic and a tool to keep members of
parliament insecure.
If parliamentarians, who also go through the rigorous test of contesting elections in the public domain, are to be
subjected to such exacting moral standards then the scrutiny of judges should be higher still.
After all, judges are selected purely on the value of their integrity and skills. Judges who erred in the past seek
understanding on the plea that they subsequently suffered and have made amends. Should others also not be given the same
opportunity to turn over a new leaf? How will sagacity and non-profligate behaviour be judged?
Apart from Dr Mubashar Hasan, not even the petitioners of the NRO case are likely to pass the strenuous test laid down
in Article 62 of the constitution. This could well beg the question whether it is wise for those in glass houses to be
pelting stones.The judgment goes much further. It has assumed a monitoring rather than a supervisory role over NAB
cases. In India, the supreme court directly interfered in the Gujarat massacre but it did not make monitoring cells
within the superior courts.
Is it the function of the superior courts to sanctify the infamous NAB ordinance, the mechanism itself and to
restructure it with people of their liking? It is true that the public has greater trust in the judiciary than in any
other institution of the state, but that neither justifies encroachment on the powers of the executive or legislature
nor does it assist in keeping an impartial image of the judiciary.
The long-term effects of the judgment could also be counter-productive; perpetrators are often viewed as victims if
justice is not applied in an even-handed manner and if administered in undue haste with overwhelming zeal. It is
therefore best to let the various intuitions of state take up their respective responsibilities because eventually it is
the people who are the final arbiters of everyone’s performance.
About AHRC: The Asian Human Rights Commission is a regional non-governmental organisation monitoring and lobbying human rights
issues in Asia. The Hong Kong-based group was founded in 1984. The above statement has only been forwarded by the AHRC.
ENDS