Pakistan Views

The Supreme Court on Wednesday vacated its stay order against the National Reconciliation Ordinance (NRO) and allowed the competent courts and officers to hear and decide the cases before them. Under NRO termination is allowed of all court cases and investigations against persons including members of National Assembly and Senate who had held public offices till October 1999. President Musharraf had promulgated the NRO on October 4, 2007 after protracted power sharing negotiations with Pakistan People’s Party Chairperson Benazir Bhutto. It paved the way for Benazir to come back from self-exile and take part in the general elections. However, five prominent personalities–Dr Mubashir Hassan, Qazi Hussain Ahmad, Roedad Khan, Shahbaz Sharif and Tariq Assad–challenged validity and legality of the NRO in the Supreme Court. The petitioners argued that the acquittal of a person through withdrawal of pending cases, especially those in which conviction has occurred, by means of a legislative instrument, amounts to an unconstitutional interference with the judicial function and was a violation of the principles of independence of the judiciary as well as separation of powers enshrined in the constitution. A four-member bench, headed by Chief Justice Iftikhar Muhammad Chaudhry, had heard these petitions on October 12, 2007 and stayed implementation on the NRO and held that any benefit drawn by any public office holder under this law would be subject to the final decision of the court. A five-member bench of the apex Court, headed by Chief Justice Abdul Hameed Dogar, took up these petitions and the stay order on Wednesday. Petitioners Dr Mubashir Hassan and Roedad Khan requested the court to adjourn the hearing as their lawyers could not attend the court on medical grounds.
Attorney General Malik Muhammad Qayyum submitted that NRO is now a permanent law as it is protected by the Revival of the Constitution Order. Before adjourning the hearing for an indefinite period, the court vacated the stay order of October 12, 2007 and directed all courts and concern officials to act according to the law laid down in the NRO. The court dismissed the petitions of Qazi Hussain Ahmed, Mian Shehbaz Sharif and Tariq Assad as they did not appear in the court.

A Supreme Court bench dismissed three petitions against National Reconciliation Ordinance (NRO) on Wednesday morning, as the petitioners Qazi Hussain Ahmed, Shahbaz Sharif and Tariq Asad did not pursue the petitions.
Three out of the five constitutional petitions were earlier filed against the National Reconciliation Ordinance.
A five-member special Bench of the Supreme Court headed by the Chief Justice, Justice Abdul Hameed Dogar and four other judges Justice Faqir Muhammad Khokhar, Justice Muhammad Ijaz Yusuf and Justice Ijazul Hassan heard the petitions.
Dr. Mubasshar Hassan, Muslim League-N’s president Shahbaz Sharif, Jamaat-e-Islami Amir, Qazi Hussain Ajmad, Roedad Khan and Tariq Asad Advocate had filed the petitions against the NRO issued by President Pervez Musharraf.

The Supreme Court will on Wednesday start hearing of five constitutional petitions, filed against the National Reconciliation Ordinance 2007. It may be recalled that President Pervez Musharraf issued NRO on October 4, 2007, just two days before his re-election on October 6, 2007. The NRO paved the way for late PPP Chairperson Benazir Bhutto to come back from self-exile and take part in the general elections. In return, Benazir did not oppose Musharraf’s re-election and her party’s members of Parliament abstained from voting in the presidential election. The petitions will be heard by a larger five-member bench, headed by Chief Justice Abdul Hameed Dogar. The other members of the bench are Justice Mohammad Nawaz Abbasi, Justice Fakir Mohammad Khokhar, Justice Ejazul Hasan and Justice Chaudhry Ejaz Yousuf. The impugned national reconciliation ordinance states that all court cases and investigations against persons, who have held public office till October 1999, will be terminated. It applies to members of the National Assembly and Senate, the two house of Parliament, and also covered the late Benazir Bhutto. However, former prime minister Nawaz Sharif and his younger brother, Shahbaz Sharif, cannot avail of the amnesty given under the NRO. President Musharraf had stated that political reconciliation and harmony alone could help the government tackle key issues like terrorism and extremism. Veteran politician Dr Mubashar Hasan, retired bureaucrat Roedad Khan, and one Tariq Asad filed the petitions in the Supreme Court immediately after the promulgation of the NRO in October 2007. They contended that the NRO attempted to subvert the letter and spirit of the Constitution by seeking to usurp the judicial power of the State by granting de facto “legislative acquittal” to persons being probed pursuant to proceedings initiated between January 1, 1986 and October 12, 1999.” They said the facility of immediate legislative acquittal has been granted in a discriminatory manner only to the holders of public office in terms of the National Accountability Ordinance, 1999. The petitioners say the ordinance frustrates the clear intent of the Constitution, contained in Articles 62 and 63, regarding the ineligibility of any person, particularly the holders of public office to contest parliamentary elections if found guilty, amongst others, on charges of corrupt practice, moral turpitude or misuse of power or authority. The petitioners argued that the acquittal of a person through withdrawal of pending cases, especially those in which conviction has occurred, by means of a legislative instrument amounts to an unconstitutional interference with the judicial function and was a violation of the principles of independence of the judiciary as well as separation of powers enshrined in the Constitution. It may be added that these petitions came up for hearing before this bench on February 6, but the proceedings were adjourned at the request of the counsel for the petitioners. Prominent constitutional experts Abdul Hafeez Pirzada, M. Ikram Chaudhry, Dr Farooq Hassan and Mohammad Akram Sheikh will argue. The court has issued notices to the Attorney General, Advocates Generals of Punjab, Sindh, NWFP and Balochistan, Federal Secretary, Ministry of Law, Justice and Parliamentary Affairs, provincial governments of Punjab, Sindh, NWFP and Balochistan, and the Chairman, National Accountability Bureau (NAB).

The five-member Supreme Court bench, headed by Chief Justice Abdul Hameed Dogar, on Wednesday adjourned hearing on petitions against National Reconciliation Ordinance 2007 at the request of the petitioners.
Qazi Hussain Ahmed, Shehbaz Sharif, Roedad Khan, and Dr Mubashir Hassan have challenged the National Reconciliation Ordinance in the Supreme Court under Article 184 (3) of the Constitution.
Though counsel for the petitioners did not appear before the court, yet they filed applications for adjournment through their representatives. The Attorney-General, Mohammad Qayyum did not oppose the adjournment move.
Briefly addressing the court, the Attorney General submitted that NRO was protected by the Provisional Constitution Order (PCO) and it had not expired after four months under Article 89 of the constitution. The Chief Justice observed that Article 270 AAA of the Constitution had validated the Provisional Constitution Order (PCO).
On the request of Roedad Khan, Dr Farooq Hassan, and Abdul Hafeez Pirzada, the court adjourned the hearing till last week of this month. It may be added that President Pervez Musharraf had promulgated National Reconciliation Ordinance (NRO) on October 5, 2007 to pave the way for Benazir Bhutto and other politicians to come to Pakistan and take part in the general elections. Five identical petitions were filed in the apex court for staying the implementation of the ordinance.

Chief Justice of Pakistan Abdul Hameed Dogar, constituted five benches of the Supreme Court for next week, starting from February 4 (Monday) for the hearing of more than five hundreds of cases at Islamabad.
According to the cause list issued on Saturday by the fixture department of the Supreme Court for next week, benches comprising Chief Justice, Abdul Hameed Dogar, Justice Ijaz-ul-Hassan and Justice Chaudhry Ijaz Yousuf (Bench-I), Justice Muhammad Nawaz Abbasi, Justice Muhammad Qaim Jan Khan and Justice Moosa K.Leghari (Bench-II), Justice Faqir Muhammad Khokhar, Justice Muhammad Akhtar Shabbir and Justice Syed Sakhi Hussain Bukhari (Bench-III), Justice M.Javed Buttar, Justice Saiyed Saeed Ashhad and Justice Syed Zawwar Hussain Jaffery (Bench-IV) and Justice Zia Pervez and Justice Mian Hamid Farooq (Bench No-V) will hear hundreds of cases including service matters, tax matters, bail matters, NAB case and others at Islamabad.
On the directive of the Acting Chief Justice, the fixture department has already mentioned on the top of cause list that “No application for adjournment through fax will be placed before the court. If the counsel is unable to appear for any reason the Advocate-on-Record will be required to argue the case.”

The Supreme Court on Wednesday recalled its order of October 1, 2007 to suspend senior officials of Islamabad administration for using force against journalists, lawyers and members of civil society on September 29 before the Election Commission building.

It may be recalled that chief justice Iftikhar Mohammad Chaudhry had taken suo motu notice of happenings of September 29 - the day ECP scrutinised nomination papers of the Presidential candidates. The court had found Islamabad Inspector General of Police Marwat Ali Shah, Deputy Commissioner Mohammad Ali and SSP Nadeem responsible for excessive use of force and ordered their suspension.

A three-member bench headed by Chief Justice Abdul Hameed Dogar heard the appeal of these officers here on Wednesday. Attorney General Malik Muhammad Qayyum submitted that if the departmental inquiry against a suspended government official was not completed within two months, the suspension order becomes ineffective.

He said that no departmental inquiry had been conducted against these officers during the past three months and the fact-finding committee had also not given its findings. Qayyum said that the government wanted to reinstate these officials but due to the court orders it could not do so.

The court recalled its order of October 1, 2007 and referred the matter of suspension to the department concerned to settle the issue. Deputy Attorney General Nahida Mahboob Elahi, Mujeeb-ur-Rehman, advocate, counsel for the suspended police officials also appeared before the court.

The Federal ministry of Law has issued the notification for retirement of 24 High Court judges who did not take oath under the Provisional Constitutional Order (PCO).

Sindh High Court’s Justice Ahmed Hussain Jaffery, Justice Khilji Arif Hussain, Justice Amir Hani Muslim, Justice Gulzar Ahmed, Justice Maqbool Baqar, Justice Muhammad Athar Saeed, Justice Faisal Arab, Justice Sajjad Ali Shah, Justice Zafar Khan Sherwani, Justice Salman Ansari, Justice Abdul Rasheed Kalhwar, and Justice Arshad Siraj, while Lahore High Court’s Justice Khwaja Muhammad Sharif, Justice Saqib Nisar, Justice Asif Khosa, Justice Muhammad Tahir Ali, Justice Ijaz Ahmed Chaudhry, Justice M.A. Shahid Siddiqui, Justice Muhammad Jahangir Arshad, Justice Iqbal Hameed-ur-Rehman, Justice Muhammad Ata Bandial and Justice Shaikh Azmat Saeed have been retired, said the notification. 

Two judges from Peshawar High Court Justice Ejaz Afzal Khan and Justice Dost Muhammad were also included in the list of retired judges. 

By M B Naqvi
Clearly none of bigger political parties cares a hoot for the deposed and purged judges of superior courts, still under detention, except Nawaz Sharif and Imran Khan. PPP and even PML-N leaders have joined the US project to strengthen the hitherto Pakistan army chief’s cause. One directly and other through the Saudi king. The two buddies, Gen. Musharraf and US President George Bush, have shown they prefer the sword to be mightier than law, reason and pen. Most of the others have been overwhelmed or bought.

Yet most Pakistanis acknowledge the PCOed judges and the legal fraternity led by the shining galaxy of Justice Wajihuddin, Munir Malik, Aitzaz Ahsan, Ali Ahmed Kurd and so many famous or work-a-day lawyers as their heroes. These continue blazing a trail for the people to follow. They want respect for all human beings as equal and valuable for whom rule of law is a must. That requires judges and lawyers who value human freedom and who refuse to bow before autocratic rulers unendingly uttering deceptive falsehoods. The Judges led by Justice Iftikhar Mohammad Chaudhry and all 60 or more judges (who resigned in protest) constitute the true Supreme and High Courts in which legitimacy of law resides. They need to be saluted every day — and their lead followed.

This great betrayal of rule of law and human freedom — the heart of democracy – was spearheaded by the JUI chief and PPP chief, each wired to General Musharraf and the US administration respectively. They will legitimise the Army Chief’s actions of imposing the state of emergency (martial law really). Everyone knows that all the shots will continue to be called by the hitherto COAS behind the make-belief screen of caretakers and elections will be ‘managed’ through the agencies. Aware citizens expect these polls to produce Musharraf-desired results. Hitherto, the PML-N chief had refused any kind of deal with Musharraf and supported the old judiciary’s restoration. One fears that the US may have forced him to climb Musharraf’s bandwagon. He had been firm in demanding the withdrawal of emergency, the PCO and the restoration of the pre-Nov. 3 judiciary. One will wait for a few days before tarring him with the same brush as Benazir to know what exactly transpired at a putative meeting where the American ambassador was also present.

It is too late to remonstrate either with major parties about why they want to participate in an election held under emergency restrictions and in which agencies will do their mischief or to make futile appeals to Gen. Musharraf’s conscience. The former, in fact, had only minor differences with Musharraf and have composed them. The latter is likely to think his grand strategy has succeeded and he is home and dry for the next five years.

And yet Nov. 3’s emergency, PCO and media curbs will deepen all the fault-lines, indeed fissures, in the polity. All those who are participating in such an election are obliging the US and strengthening Musharraf so they can supposedly fight the Taliban and Al Qaeda better. But they should still think about what another five years of an unreformed Musharraf’s rule will do to Pakistan’s body politic. Have the methods employed by Islamabad under the COAS rule for seven years curbed the growth of the Taliban and assorted militants? Or they have led to an increase in their sway and influence?Or has Balochistan shown any normality after big Bugti’s murder. Are the rivers of milk and honey flowing in Sindh? How many Pakistanis are happy in this victory of brute power over the civil society and law?

What we Pakistanis have today is two contending causes, each claiming legitimacy. One side is led by the army chief, carrying with him platoons after platoons of rich sycophants, timeservers and turncoats. The other side comprises intelligentsia and common folks; they believe in human values, law and its majesty and the power of truth. These are irreconcilable. From the looks of it brute physical power prevails. Is this defeat of law, learning and values definitive?

Some victories can be picric. This one too is, if only the upholders of law’s cause shed their limitation of remaining non-political. It was popular support for the cause represented by Justice Iftikhar Chaudhry and his lawyers that catapulted them — a political phenomenon. Chaudhry commanded no troops, yet the common people — that too of Punjab — showered their love and support on him and lawyers; the whole country supports them. They are the new and authentic heroes and icons. Their political potential is unmatchable.

It is a mistaken polarization in which the two causes, politics and lawyers, neither in conflict with rule of law and libertarian philosophy really, can usefully come together to reinforce what the bar and legitimate bench stand for. The other side is entrenched anti-democratic power(s). It is a line up of a civil war. However, a civil war is best avoided. Pakistan is externally vulnerable, perhaps for the first time. Pakistan has two reasons to invite the ire of many in the west, led by the US and NATO: the Taliban and assorted Islamic militants with their influence, on the one hand, and nuclear weapons, on the other. Look at the potential of a civil war(s) in view of these vulnerabilities. It is too scary to contemplate.

Civil war begets economic meltdowns. Not that Pakistan economy is in the pink of health. Its vulnerabilities have multiplied in recent years, official propaganda of achievements notwithstanding. Economic collapse can precede, accompany or follow a civil war. Economic progress requires stable politics — of a democratic kind. There is no way anyone can combine civil strife and economic progress.

What Pakistan needs urgently is national consensus over how and who to run the polity: Musharraf’s Islamabad is likely to remain under attack from many sides: assorted Islamic extremists, al-Qaeda and Taliban (who combine an extra-austere Islam with Pushtoon nationalism), secular nationalisms of the Pushtuns, Baloch and the Sindhis. There is also the potential threat from the dirt poor; should they be mobilized, they will pose a serious threat to the elitist politics.

But there can be a sane, democratic national consensus seeking to promote peace, law and democracy with an equity-based approach to economic matters. It can seek democratic solutions to not only NWFP’s problems but also to those arising in and from Afghanistan. Democrats can find a solution to Balochistan problems without too much difficulty. Pakistan needs a democracy that can control the military services and not the vice versa. People’s true representative will also know how to tackle foreign powers, big and small.

But where is such a democratic leadership? Major parties having disappointed so bitterly, there are only the judges and lawyers who sustained a six months long glorious agitation and are continuing to lead. They have now the additional task of mobilizing the people to establish rule of law, democracy and to uphold all human rights, including people’s right to social security. Would Wajihuddin Ahmed or Aitzaz Ahsan rise to the occasion?

The writer is a veteran journalist and freelance columnist. Email: mbnaqvi@ cyber.net.pk