NRO Judgment: Shall it be implemented?

The Nation
Friday, December 2, 2011

“The executive arm of the State is elected to represent the will of the people and if such institution starts taking pride in avoiding the court verdicts, as an act of heroism, then why would a common man abide by law, respect the court’s judgments or command of Parliament and how would the State avoid anarchy and chaos?

 The Honorable Supreme Court of Pakistan on November 25, 2011, unanimously announced the dismissal of various review petitions filed against the judgment of December 16, 2009, whereby the National Reconciliation Ordinance (NRO) of 2007 was declared void ab initio and actions taken under the said ordinance were declared as null and void. The directions issued in the judgment of December 16, 2009, were directed to be implemented forthwith. These directions, inter alia, are contained in paragraphs 178 and 179 of the judgment mentioned hereinabove. The Supreme Court mandated as quoted hereunder:

“178. Since the NRO 2007 stands declared void ab initio, therefore any actions taken or suffered under the said law are also non est in law and since the communications addressed by Malik Muhammad Qayyum to various foreign fora /authorities/courts withdrawing the requests earlier made by the Government of Pakistan for mutual legal assistance; surrendering the status of civil party; abandoning the claim to the allegedly laundered moneys lying in the foreign countries including Switzerland, have also been declared by us to be unauthorised and illegal communications and consequently of no legal effect, therefore, it is declared that the initial requests for mutual legal assistance; securing the status of civil party and the claims lodged to the allegedly laundered monies lying in foreign countries including Switzerland are declared never to have been withdrawn. Therefore, the federal government and other concerned authorities are ordered to take immediate step to seek revival of the said requests, claims and status.

“179. In view of the above-noticed conduct of Malik Muhammad Qayyum, the then learned Attorney General for Pakistan in addressing unauthorised communications which had resulted in unlawful abandonment of claims of  the government of Pakistan, inter alia, to huge amounts of the allegedly laundered monies lying in foreign countries including Switzerland, the federal government and all other competent authorities are directed to proceed against the said Malik Muhammad Qayyum in accordance with law in the said connections.”

The judgment contained direction for the revival of all cases closed under the NRO. The full bench of the Supreme Court comprising 17 members with one voice reiterated the verdict of December 16, and commanded its implementation in a letter and spirit. During hearing of this matter for four days, various learned judges have been questioning the counsel representing the federation to pinpoint the aspects of the judgment operation of which militates against the interest of the federation, and they also question the learned counsel as to the possible difficulties that are being contemplated by him to come in the way of the implementation of the judgment. Justice Asif Saeed Khosa put Mr. Babar Awan at ease and asked if there was any problem in writing any letter or any other insight hurdle being contemplated by him. Mr. Babar Awan, the learned counsel for the federation, argued the case vociferously without answering various questions raised by the court, including the aforesaid question. The judgment in the review petition was announced, dismissing the same. Although the government has been taking full advantage of pendency of these petitions for nearly 23 months, the apex court did not issue any order against non-implementation of the NRO judgment.

The question, which is being examined in this brief article, is as to whether the government shall or shall not implement the mandate of the Apex Court and if it does not, what repercussions are likely to come in its wake. There are very few countries in the democratic world, who would be flouting judgments of their ultimate arbiters and would take pride in deliberate obstructions in the implementation of the judgments of their apex institutions. But the current regime stands unique in the comity of nations for taking pride in even announcing the non-acceptance of the judgment of its Apex Courts and the NRO judgment is not the only one which it shall continue to avoid to implement.

In the civilized world, an independent judiciary is taken as a guarantee for the smooth running of democracy, but the story at home sounds different from the rest of the world. Here an expression of loyalty with party leadership by flouting judgments of the Apex Courts is considered as an act of heroism, worthy of political aggrandizement. It is a matter of record that when the Supreme Court was holding certain hearings for writing letters to the Swiss authorities, it was the Law Minister who proudly pronounced that such a letter can only be written on his dead body. One wonders, what a skewed mindset the government of the time has. While it does not hesitate in asking a foreign government to help the civilian government to prevail on the military leadership, it does not endeavour to learn lesson from the contemporary democracy, and take the sublime path of non-interference by its authoritative institutions into the functions of all the organs of democratic polity in letter and spirit, of respect for the principle of separation of power and of unquestioned obedience to the verdicts that one of the State organs renders. The executive arm of the State is elected to represent the will of the people and if such institution starts taking pride in avoiding the court verdicts, as an act of heroism, then why would a common man abide by the law, respect the court’s judgment or command of Parliament and how would the State avoid anarchy and chaos?

Having the advantage of spending five days in the capital and opportunity to speak in different quarters, I have come to a sad conclusion that the judgment of the Supreme Court shall have to await implementation, till the tenure of this government runs out.

This shall be the most unfortunate chapter of our history that while in moments of State emergency, when sovereignty and territorial integrity of the State is at risk, crime rate declines, decoits, robbers, looters, etc give up their notorious professions, as it happened in 1965 and 1971, it is strange that at the time of incursion into Pakistan’s territory by the Nato forces, the federal government does not at least seal its lips against the State’s judicial organ and publicly announces that it shall henceforth comply with all commands and the orders, particularly those which are passed on the federation’s own concessions.

It may be instructive to recall the statement of Mr. Kamal Azfar, the learned Senior Advocate of the Supreme Court, made on December 15, 2009, as the counsel of the federation before the Apex Court recorded in paragraph 24 of the judgment to the effect that the “Federation does not oppose the petitions seeking a declaration that the NRO is illegal and unconstitutional.” Likewise, the learned Acting Attorney General of Pakistan appearing for the federation and all Advocates General from Punjab, Sindh, Balochistan and Khyber Pakhtunkhwa did not oppose the petition and consistently reiterated the stand that they are not supporting the NRO of 2007 (Paragraph 13 of the judgment).

Quite apart from the issue of immunity attached with the office of the President, which can only be taken by him as a defence in case he is summoned, to face trial, what harm would it cause to the federation to write a letter to the Swiss authorities as directed by the Supreme Court in paragraph 178 and 179, as mentioned hereinabove. If there is no skeleton in President Zardari’s cupboard, why should he not direct his Prime Minister as the leader of his party to write such a letter and strengthen the tradition of the rule of law and open and transparent accountability in this country?

If the government’s seasoned lawyers and jurists are of the unanimous view that no foreign government can take action against the sitting President, why it should not feel confident in complying with the two-year old direction of the Supreme Court and take the plea that they are debating the issue in Pakistan before the appropriate forum, in case they receive any process.

Mr. Zardari’s team of ‘Legal Eagles’ will be best advised to have a pragmatic view of the present scenario. It may, probably, be in the best interest of the President to let it happen while he still holds power, rather than when he loses this opportunity, because in the latter case it is not only Asif Ali Zardari who shall suffer, but he will be settled with the ignominious responsibility of having subverted the rule of law, supremacy of the Constitution and his own oath of office, whereby he has vowed not to allow his personal interest to prevail over a State function and, simultaneously, deal a terrible blow to the whole system.