200910.04
0

WHY ZARDARI DID NOT RESTORE JUDICIARY?

The News International,

Monday, October 4, 2009

For all the people of Pakistan, it still remains a mystery as to exactly why Mr. Asif Ali Zardari did not restore all the deposed judges after elections? More to the point, if he never intended to restore the chief justice of Pakistan, why Zardari  entered into agreements after agreement with Nawaz Sharif, when he never intended to stand by them? And why is it that he could not see that why not restoring CJ Iftikhar Chaudhary, he was omitting to do something that could have been hugely popular for him as well as PPP?

Todate, these questions remain a mystery. But if certain set of facts are just listed in chronological order, the conclusion that one can deduced is both shocking and damning at the same time.

In February, 2008, as head of PPPP that was positioned to win the coming elections on the sympathy where that was generated by the tragic assassination of Benazir Bhutto , Asif Zardari found in his lap to vital gifts, both courtesy of General Musharaf. One was the NRO and the other was the group of terribly insecure PCO judges who were desperate to do anything to block restoration of judiciary.

In February 2008, immediately after the 40th day of Mohtarma Benazir’s tragic death, Asif Zardari set about using the above two opportunities for his maximum advantage. What people do not know is that while the NRO gave Zardari and his friends an opportunity to have all corruption cases being pursued against them withdrawn, the paranoid insecurity of the PCO judges also prove to be an equally valuable asset that was used to have Asif Zardari acquitted in various murder and criminal case that had no nesxus with NRO whatsoever.

Even at the time Benazir was negotiating for withdrawal of all ‘corruption case’ against her husband and herself, all person who were party to the talks confirm that she made no demand for withdrawal of ALL criminal cases against her husband.

It is thus that immediately after elections, Zardari went to Raiwind and later both Nawaz Sharif and Zardari rejoiced in the warmth of their newfound affection. The two were one family now. The two made a public commitment for restoration of  chief justice of Pakistan Justice Iftikhar Chaudhary alongwith all other honourable judges who had refused to take oath under the PCO. This was followed by a number of meetings, negotiations and accords between the two, at Raiwind, then Murree, then Dubai, then London, and then Islamabad. Twice, the commitments also got translated into two formal agreements, none of which was implemented.

Starting from 18 February 2008, till the night of 16 March 2009, as time passed , lawyers, deposed, Hounourable judges who were sitting at home feeling humiliated, journalist, and virtually every conscientious person in the country was perplexed as to why Mr. Asif Zardari, after having made unqualified commitments, was taking his party and his government into a political cul_de_sac, where in the end,  the party ended up with no popularity and no credibility? By doing this, his strangely ensure that his party stood on the wrong side of the most popular public demand of the time, that too without any principled stand. The result was a huge cost to both the popularity and credibility of PPP. And no one in the PPP circle knows exactly for what substantive political reason the political question was played by Zardari the way it was played, till such time he was virtually forced to surrender before the sheer will of the people.

So why did Asif Zardari play the question of judiciary restoration the way that he did?

Records shows that  three days before the election, on February 15, 2008, very correctly having assessed the whole situation, Asif Ali Zardari  placed all his bets with the PCO judges, expecting them to deliver on all his demands should they want  to remain in their jobs. And all his subsequent meeting with Nawaz Sharif and agreement and oral commitments to restore the Honourable Chief Justice and his colleagues were just a way to kick forward Dogar and other PCO judges to complete their assigned job at the earliest.

So it was on 15th February 2008, just after 40th day of Mohtarma Benazir’s sad assassination, her supposedly grieving husband, not wasting any time, not even waiting for the outcome of election, just  three days before election,  filed a Constitution Petition (D- 265/2008) in Sindh High Court. In that petition, he sought a direction to Federal Government and to NAB to withdraw all proceeding against him that they might still be pursuing in UK and Swiss courts as well as before the courts in Pakistan.

The comprehensive way in which the prayer clause of the Petition, quote below, was drafted needs to comments;

“PRAYER

It is, therefore, prayed that this Honourable court may be pleased to:

  1. Declare that the Civil Proceeding being Claim No. 2006 Folio 156 file by the respondents against the petitioner in the High Court of Justice, Queen’s Bench Division, Commercial Court, London, United Kingdom, Stands terminated and withdrawn by virtue of National Reconciliation Ordinance 2007.
  2. Declare that the Mutual Request made by the respondent No. 1 to the Government of Switzerland whereupon Investigation has been started by the Investigation Magistrate, Geneva and wherein respondent No.1 has joined as Civil Party Stand withdrawn and terminating by virtue of National Reconciliation Ordinance 2007.
  3. Declare that the Proceeding viz References mentioned hereinbelow stand terminated and withdraw by virtue of NRO 2007.
  4. Reference No.14/2001 (Asset Reference) Pending before Accountability Court No. II, Rawalpindi.
  5. Reference No. 41/2001 (SGS Reference) Pending before Accountability Court No. II, Rawalpindi.
  • Reference No. 23/2000 (ARY Gold Reference) Pending before Accountability Court No. II, Rawalpindi.
  1. Reference No.59/2002 (BMW Car Reference) Pending before Accountability Court No. III, Rawalpindi.
  2. Reference NO.35/2000 (Cotecna Reference) Pending before Accountability Court No. III, Rawalpindi.
  3. Reference No. 1/2001 (Ursus Tractor Reference) Pending before Accountability Court No. II, Rawalpindi.
  • Reference No. 6/2000 (Polo Ground Reference) Pending before Accountability Court No. II, Rawalpindi”.

Justice Dogar, then acting as so-called Chief Justice of Pakistan, too, was not found missing in his keenness to please Asif Zardari by demanding fastest acquittals from all subordinate courts. On 27th  February 2008, while hearing constitution petition 76 and 77 of 2007 (Petition that actually challenged the validity of NRO), a five member bench of PCO judges, issued the following directions to all sub ordinate courts.

“IN THE SUPREME COURT OF PAKISTAN

(ORIGNAL JURISDICTION)

PRESENT:

Mr. Justice Abdul Hameed Dogar. HCJ

Mr. Justice Muhammad Nawaz Abbasi

Mr. Justice Faqir Muhammad Khokhar

Mr. Justice Ijaz ul Hassan

Mr. Justice CH. Ejaz Yousal

Constitution Petition No. 76 and 77 of 2007

“—-the Courts and authorities concerned shall proceed further expeditiously in the light of the provisions of the Ordinance without being influenced by the pendency of these petitions:”

The very next day, two PCO judges of Sindh High Court namely  Khawaja Naveed and Ali Sain Dino Metelo, while hearing Asif Zardari’s constitutional petition (D-265/2008),  promptly and expressly complied with the above Supreme Court order by directing NAB and government to file a report in Court conforming that they had withdrawn under NRO all corruption cases against Asif  Zadari, including confirmation that they had ceased all kinds of cooperation with all foreign prosecuting authorities against Asif Zardari on the basis of above mention SC order.

Asif Zardari’s Petition before Sindh High Court was fixed again and again, on each hearing, the Court admonishing NAB and Federal Government to withdrawal all cases against Zardari file compliance report before Sindh High Court at the earliest. The said Constitution Petition, under which all corruption cases against Zardari were ultimately withdrawn was fixed on 15.02.2008, 29.02.2008, 04.03.2008, 28.03.2008, 21.04.2008, 06.05.2008, 15.05.2008, 29.08.2008, 17.09.2008.

It was finally on 17 September, 2008, that the counsels representing NAB and federal government,( both now under the virtual and legal control of Asif Zardari), through Deputy Attorney General Amir Raza Naqwi and NAB counsel Salman Aslam Butt, submitted compliance report before the same two member bench of Sindh High Court consisting of the same judges who had directed withdrawal i.e., Khawaja Naveed and Ali Sain Dino Metelo.

As for the proceeding in Swiss courts the Deputy Attorney General, on behalf of the federal government, produced a copy of the letter in Court regarding the termination of the proceedings before the Swiss courts and informed the Court that all the proceeding against the petitioner had been withdrawn. It was thus that Investigating Magistrate, Geneva, was forced to drop proceedings against  Asif Zardari regarding criminal conspiracy to defraud Pakistan for his personal financial interest,

As for UK case relating to the infamous Surrey Palace, DAG confirmed to the Sindh High Court that all the proceedings against Zardari before the High Court of Justice, Queen’s Bench Division, Commercial Court London, regarding the sale of Rockwood Estate in Surrey (UK) had also been terminated.

Lastly, with regard to NAB references, the DAG confirmed that all seven NAB references against Zardari-Assets Reference, SGS References, ARY Gold Reference, BMW Car Reference, the Cotecna Reference, the Ursus Tractor Reference, Polo Ground Reference- that were pending against the petitioner before the Accountability Courts in Rawalpindi had been withdrawn by the government.

After the above statement of DAG, the petitioner’s counsel Abu Bakar Zardari and Hyder Ali did not press their petition and Honourable Justices Khawaja Naveed and Ali Sain Dino Metelo disposed off the petition through the following order:

“ODERSHEET

IN THE COURT OF SINDH HIGH COURT, KARACHI

  1. No. D- 265 0f 2008

16.09.2008

-“—-the Learned D.A.G states that on the request of the Government of Pakistan criminal proceedings pending against the petitioners in Swiss Courts have been closed and the civil proceedings pending against him in the High Court of Justice, Queen’s Bench Division, Commercial Court London, United Kingdom, have terminated.

“In the view of statement made by the learned DAG, learned counsel for the petitioner does not press the petition. Accordingly, the petition along with the listed applications is disposed off as not pressed.

Judge”

The above being the overall scheme of events, the following chronology will demonstrate how efficiently and methodically Asif Zardari and PCO judges worked in tandem, while Nawaz Sharif, lawyers and the whole nation was left to read and rejoice lofty commitments for restoration of deposed judges.

On 15 February 2008, Asif Zardari file his Constitutional Petition before Sindh High Court asking that Federal Government and NAB be ordered to immediately give him the benefit of NRO by withdrawing all listed cases against him. On 18 February, elections were held. On 27 February, Dogar directed all subordinate courts to give benefit under NRO ‘expeditiously’. On 28 February, in compliance with the Supreme Court direction, the Sindh High Court issued the required direction to NAB and Federal Government.

In the meantime, Zardari held several meetings with Nawaz Sharif and, just to keep pressure on PCO judges, on 9th March 2008, he even signed the infamous Murree Accord, that contained a commitment to restore the Chief Justice of Pakistan within 30 days. As it turned out, the 30 days was not meant as a promise for the nation but in fact, a deadline for the PCO judges to deliver.

Four days after the signing of the Murree Accord, on 12th March 2008, SGS Cotecna case was disposed off. It was the same case in which, after the Supreme Court, on 6th April 2001, set aside conviction of Asif Zardari and Benazir Bhutto by Justice Malik Qayum, the case had gone back to Accountability Court No. 3 at Rawalpindi for retrial, which was underway.

Six days after the signing of the Murree Agreement, on 14 March 2008, the Accountability Court No. 3 at Rawalpindi, on the application of Zardari’s counsel Farooq H. Naik, and with the consent of the opposite counsel Danishwar Malik, proceeded to acquit Asif Ali Zardari in the famous BMW case. The presiding judge was Sagheer Ahmed Qadri who, in his order, expressly stated that as the case fell outside the scope of NRO, the acquittal was being ordered under general law.

(interestingly, it was the same case in which, after hearing Asif Zardari’s counsel Aitzaz Ahsan’s lucid arguments, a ful bench of Supreme Court headed by Chief Justice Iftikhar Muhammad Chaudhary, had granted bail to Asif Zardari, an order  because of which he was released. After his release, he left Pakistan and when he returned, it was Chief Justice Iftikhar Chaudhary who was now deposed and under house arrest with his children).

Continuing with the progress of PCO judges, and that of judges subordinate to them, within days of the Murree Agreement, Zardari’s counsel Shahadat Awan file an application in Sindh High Court for the Acquittal of Asif Ali Zardari in Justice Nizam and his son’s double murder case and on 24th March 2008, Sofia Lateef, another PCO judge, with the consent of special public prosecutor Naimat Ali Randhawa, proceeded to acquit Asif Zardari. Againl, this acquittal had nothing to do with NRO.

On 8th April 2008, just a day before the expiry of 30 days time deadline given in Murree Accord, another Sindh High Court PCO Judge Pir Ali Shah acquitted Asif Ali Zardari in Murtaza Bhutto murder case. This acquittal too had nothing to do with NRO.

On 9th April 2008, as the deadline of 30days given in Murree Agreement expired, Asif Zardardi sought another ten days time from Nawas Sharif for implementation of the Agreement.

As Nawaz Sharif and lawyers tried to make sense of the delay, on 15th April 2008, Zardari’s cousel Yousuf Leghari move an application before District and Sessions Judge, Hyderabad for acquittal of his client in the famous Alam Baloch murder case. On 16th April 2008, within one day of the application being filed, the court acquitted Asif Zardari.


As the ten days time that Asif Zardari had sought for restoration, expired, Nawaz Sharif, who was waiting in Islamabad, was to Dubai for yet another round of talks on restoration of judiciary. By now, everyone, in Pakistan was confused about the real reason for Zardari’s excuse and delay. And after a well publicized marathon sessions of talks in Dubai, on 9th and 10th May 2008, Nawaz Sharif and Zardari held another round of discussion in London. By this time, PPP leaders started making all kinds of excuse because of which judiciary could not be restored. It was claimed that Constitution needed to be amended to take away the legal effect of a document (PCO) that had been issued with the signature of a mere public servant.

While this went on, on 13th May 2008, another PCO judge of Sindh High Court Bin Yamin acquitted Asif Zardari, along with the current Pakistan High Commissioner to UK, Wajid Shamsul Hassan, from the criminal case involving charges of smuggling out eight crates of artifacts, antiques and other contraband items for the infamous ‘Surrey Palace’ without paying any custom duty or air freight to PIA. This acquittal order was also not based on NRO.

PCO judges were not the only one keen to please. Subordinate judiciary too did not want to be left behind. On 19th May 2008, Additional Session Judge Ejaz Hussain Awan in Lahore acquitted Asif Zardari in drug smuggling case. According to record, when the judge asked the state counsel, Mr. Aazar Latif Khan, he said: ‘I will have no objection if the court accepts the acquittal plea of the accused”. This acquittal order too, was not based on NRO.

As for the question why Malik Qayum was retained as Attorney General, obviously it would not have looked proper if both the counsels of the accused and Attorney General were from PPP. After Malik Qayum and his subordinate, DAG Salman Aslam Butt had done their duty in giving their consent to all the acquittal applications, Malik Qayum was promptly replaced  with Lateef Khosa as government’s new Attorney General.

By this time, whatever advantage could have been taken on the basis of NRO or by pressurizing insecure and desperate PCO judges, had been taken and Asif Zardari, now free of all criminal cases, was free to become head of state of Pakistan. But there was just one problem. The office of President was still occupied by Asif Zardari’s mentor General Musharraf, without whose NRO and active help and blessing, Zardari could obviously not have gotten rid of all criminal cases against himself. Till he got acquitted in the last criminal case, Asif Zardari never condemned Musharraf. But now he needed a vacant Presidency.

It was thus that on August 7, 2008, Asif Zardari entered into another agreement with Nawaz Sharif. If Nawaz would cooperate in getting rid of the ‘dictator’, PPP would restore judiciary within 72 hours of impeachment of General Musharraf. Once again, Nawaz Sharif failed to see the trap and allowed himself to be used. The Agreement was signed. But after 18th August 2008, when Musharraf, under tremendous pressure on account of the deadline given by both parties, resigned, Zardari refused to abide by his commitment and instead, proceeded to become President of Pakistan. Muslim League (N), now realizing how they had been manipulated and used, did not vote for him. Zardari, on the other hand, brushed aside criticism by saying that promises and agreement are not Quran or Hadith. What happened afterwards, is known to everyone.

In its detailed judgment of 31st July 2009 (just announced), the Honourable Supreme Court  of Pakistan has fully and comprehensively addressed all the legal issues that I was seeking to raise on behalf of Review Petitioner and my very dear friend Advocate Nadeem Ahmed. The Honourable Court has left it in no doubt that PCO was void ab initio, that it did not have any legal effect whatsoever, and that no one including the period of 120 days for which an Ordinance can remain on the statute book as required by Article 89 of the Constitution. In other words, the Honourable Supreme  Court is quite appropriately unwilling to exercise any legislative authority by seeking to keep NRO on the statute book beyond the mandatory period of 120 days after which, Article 89 of the Constitution requires it to stand repealed. Let the ‘sovereign’ Parliament fill up the legislative gap, protect their leader from prosecution and be judged by the nation.

In the meantime, the immediate consequence of Honourable Supreme Court’s detailed judgment, specially Para Nos. 179, 184, 185, 186, 187 and 188, is that NRO is to be treated as standing repealed from 120th day of its promulgation, i.e. 2nd February 1008, a date by which not a single person had drawn any benefit under that statute. According to the judgment, therefore, NRO ceased to be a valid statute on 2nd February 2008, being 120th day of the promulgation of that Ordinance. It is therefore, incumbent on all the courts of Pakistan now to recall all their acquittal orders, at least those that were based on NRO.

All the above is surprised and sad. It also raises certain serious questions about our nation and state that is anxiously seeking to establish democratic institution. How was it that one man, just one man, whose priorities have never been a question of mystery, was able to shrewdly assess opportunities in the double national tragedies of Martyrdom of Pakistan’s most popular leader and continued imprisonment of judges and, without even being elected from a single MNA seat, with such ease, fooled General Musharraf, the whole so-called establishment, the biggest political parties PPP and PML (N), to surrender to this ambition and to blindly follow him like Peter Pan on his path of purely personal advancement and benefit?

Bernard Shaw, warning that getting rid of monarchs who at least did not suffer from insecurities and who might just happen to be amiable and harmless person, and embracing the so-called dream of an egalitarian democracy amounted to leaving naïve societies at the mercy of the ambition and craft of ruthless self-made usurpers. Barnard Shaw called such people, irresistible. Giving an example he said: ‘It cannot be contended with any plausibility that William the Conqueror was indispensable in England: He wanted England and grabbed it. He did this by virtue of his personal qualities, entirely against the will of the people of England. [Because he] had all the qualities that make an individual irresistible: the physical strength and ferocity of a king of beasts, the political genius of a king of men, the strategies cunning and tactical gumption of a military genius; and nothing that France or England could say or do prevailed against him. What are we to do with such people?’

The mode and manner in which Asif Ali Zardari completed his journey within a matter of six months from being the biggest accused person living outside Pakistan to contesting and winning elections on September 6, 2008, for the most prestigious office in the state, raises serious doubts about his ‘eligibility’ for being a candidate for the office of President of Pakistan.