The Supreme Court’s NRO verdict is polarizing all sections of Pakistani society – political parties, media and the people. Our Lords should be mindful of the interpretation of the law within the halls of justice, but how the decisions handed down by the court are interpreted in society. They must not let the NRO verdict tear the nation apart.
As a supposedly neutral judge of conflicts, our Lordships in the Supreme Court are meant to rise above petty politics and power struggles. Actually, the Oath of Office for the Supreme Court includes the following words:
I will not allow my personal interest to influence my official conduct or my official decisions…And that, in all circumstances, I will do right to all manner of people, according to law, without fear or favor, affection or ill-will.
This might be seen as a good reason to dispense with the NRO. After all, did it not give special protections to only certain people? But let us look at the same NRO from another perspective. Were not the charges largely targeting only certain people and not others?
The latest round of attacks in the public discussion have been so transparently personal that even opposition members are starting to find them embarrassing. Ayaz Amir (PML-N) wrote in The News last month that,
Whatever the exalted view that they may have of themselves, what they have helped create is a climate of uncertainty in which the first casualty is democratic stability. They rail against corruption and talk of cleansing the national stables but their real target is President Asif Ali Zardari. We all know that with his colourful past and his familiarity with Swiss bank accounts, Zardari makes for an easy target. But the point lost on our new jehadis is that our national woes did not begin with him and will not end with his departure from the office he holds.
There is another uncomfortable truth to confront. Zardari, whether one likes him or not, is elected President of Pakistan. And he was elected by no process of chicanery but by the freely-expressed wish of a large majority of the presidential electoral college, a choice not forced upon parliament and the provincial assemblies but a choice they freely made. We can regret the choice but we have to live with it.
Mr. Amir also points out the wolves in sheeps clothing that are using the NRO to attack the President and exposes their hypocrisy.
Zardari has a past. But who in the current pantheon — politician, tycoon or even jurisprudential giant — is without some kind of a past or the other? All their lordships in the Supreme Court once-upon-a-time were counted as PCO judges, taking oath at the altar of Musharraf’s first PCO. But no one is saying that because of that they should commit hara-kiri. On the contrary, the nation is wishing them well and urging them to do their best in the performance of their duties (although, at the same time, earnestly wishing that their lordships would refrain from the temptation of fixing the prices of such things as sugar and petroleum).
Today, Mr. Amir finds similar worry in the continued treatment of the NRO as a political tool – and a political tool that requires a skewed perspective of history:
And if it is history we should consider, it must be history in its entirety and not slices of history susceptible to selective interpretation. Nowhere is the judgment’s take on recent history more evident, and perhaps more startling, than in its analysis of the meaning of the word ‘reconciliation’. It says that the NRO was a deal between two individuals — Pervez Musharraf and Benazir Bhutto — for their personal objectives.
“We are of the opinion,” says the judgment, “that the NRO was not promulgated for ‘national reconciliation’ but for achieving the objectives which absolutely have no nexus with the (sic) ‘national reconciliation’ because the nation of Pakistan, as a whole, has not derived any benefit from the same.”
In attesting to the subjective nature of the NRO, the judgment quotes this from Benazir Bhutto’s book, Reconciliation: Islam, Democracy and the West: “The talks with Musharraf remained erratic. He didn’t want us resigning from the assemblies when he sought re-election. There wouldn’t be much difference in his winning whether we boycotted or contested, but we used this to press him to retire as army chief. He cited judicial difficulties. It was a harrowing period. After many, many late-night calls, he passed a National Reconciliation Order, rather than lift the ban on a twice-elected prime minister seeking office a third time, which he said he would do later.”
Is this an individual talking or a major political leader discussing the when and how of a democratic transition? The keystone, the flagstone, of Musharraf’s rule was his position as army chief. And here when Benazir Bhutto is negotiating the removal of Musharraf’s uniform — in which she eventually succeeded — their lordships are of the opinion that this deal between the two was just confined to their two selves and had no wider significance whatsoever.
This is a selective reading of the past three years which in Justice Khawaja’s estimation have been as momentous as anything in our past. There were many things which came together to pave the way for the transition from Musharraf to the present order. Different chapters were written by different authors.
Back in December, veteran journalist and Secretary General of the Human Rights Commission, I.A. Rehman, cautioned that the divisions that have resulted from the NRO must not be brushed aside without careful scrutiny.
Further, reference has again been made to the ‘salient features of the constitution, i.e., independence of the judiciary, federalism, parliamentary form of government blended with Islamic provisions’ and ‘no change in the basic features of the constitution is possible through amendment’. The argument was last heard in May 2000 when 12 judges of the Supreme Court had not only upheld the Pervez Musharraf coup of October 1999 but also allowed him the power to amend the constitution.
Even though the Chief Justice eventually fell victim to the whims of the most recent dictator, the NRO verdict still raises important questions about the judiciary just as it has begun to recover from the disastrous treatment it received under Musharraf. I.A. Rehman followed up on this theme in an important piece in Dawn yesterday about the selection of judges and the importance of maintaining respect for the democracy as a whole, and not reducing it to only its individual parts.
Political parties and other civil society organisations have been making suggestions on the subject for many years. Civil society has been vigorously pleading that the state’s chief justice should be appointed by the president in consultation with both leaders of the house and the opposition in the National Assembly. Strangely enough, nobody is referring to the proposal for the judges’ appointment through a commission contained in the Charter of Democracy. There have also been suggestions that the judges’ appointments should be subject to public hearings. However, in view of the lack of any tradition of a serious, responsible and disciplined discourse this idea cannot be recommended in Pakistan.
There remains a broader question of the judge’s social orientation that can no longer be ignored. The judiciary in most countries belongs to the conservative stock and is seldom found in harmony with the democratic and egalitarian aspirations of the masses, particularly in a developing society. The difficulties the judiciary in Pakistan faces in doing justice to the weaker sections of society — women, non-Muslim citizens and workers — have sometimes been admitted by high judicial authorities themselves. If Pakistan is to be a democratic, welfare state all its organs, the judiciary included, must be geared to the realisation of these objectives.
Human rights activist Asma Jahangir made similar observations in her reaction to the court’s 16 December ruling:
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.
“Justice must be seen to have been done, but if actions are confined to a few individuals of smaller provinces it will create a negative perception and breed hatred, antagonism and sense of deprivation.”
Perhaps most unsettling, however, is the direction that many fear the court, in a moment of hubris, is headed. Take the following lament in Asma Jahangir’s column:
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.
And consider that in the context of this week’s suggestion by senior lawyer Abdul Hafeez Pirzada that the Supreme Court can call on the Army as a partner in enforcing the NRO! Can there be any more dangerous or destabilizing situation?
Actually, Cyril Almeida sees real danger in the actions of the courts and asks what is the full agenda of the Chief Justice?
The answer, though, to what CJ Iftikhar’s judiciary is seeking to do may lie in a variant of the ‘encroachment theory’ doing the rounds in some legal circles. Separation of powers is a key element of constitutional democracies and some jurists have fretted that the court of CJ Iftikhar is encroaching on the rightful terrain of other institutions of the state, namely the executive and the legislature.
Combined with military, this could be a terrible turn for the worse just as Pakistan is making real progress towards greater democratization.
In short, the NRO verdict has actually raised more problems than it has settled. This is not to say, as some will surely try to mischaracterize the situation, that we have a false choice between keeping the NRO and destroying our democracy. No, cleaning up the mess that was made under Zia and Musharraf should not require a national suicide pact. But it does require that we need to proceed with caution and a clear goal of doing what is best for the nation in the long term. There are no easy short-term solutions, and anyone who tells you otherwise is either quite mistaken or is promoting some agenda of their own.
The esteemed Lordships of the Supreme Court would be well reminded to heed the warning of Mr. Almeida:
We needn’t automatically fear a court that may be trying to instill respect for its institution in other state institutions that have historically treated it with contempt. But we should fear a court that may be afflicted by the all-too-common Pakistani disease of not knowing when to stop, when to sense an irreversible crisis and back off for the sake of institutional stability.
Currently, the trajectory is headed towards confusion and instability. What the court can provide is not only legal wisdom, but important guidance. Chief Justice Iftikhar has the ear of the people. He should use his new-found attention to heal the growing polarization and bring the nation together.