Roedad Khan
Tuesday, January 31, 2012

I had the privilege of moving a petition in the Supreme Court challenging the validity of a deplorable legislation, not because I had an animus against any particular person. Nor did I stand to personally gain anything. I did so because, as a citizen, I felt it my duty to challenge such an iniquity being imposed on millions of my fellow citizens.

The nationwide jubilation which we witnessed after the Supreme Court delivered its landmark judgement in the NRO case was justified on many grounds. It restored the majesty of the Constitution; it proved the independence of the judiciary; it threw into the dustbin the odious agreement between a military dictator and an ambitious politician which was motivated purely by the desire of each to retain or gain political power. The court also directed that criminal proceedings against all the beneficiaries of the NRO should be continued from the stage at which they were withdrawn. The date was Dec 16, 2009.

While doing all this, the court did not exceed the limits of good jurisprudence and stopped short of actually assuming the role of a trial court and proceeding against any particular individual. It did, however, insist that the names of the beneficiaries should be disclosed, no matter how high and mighty they may be, and the amounts they had stolen be shown to the court and the public.

The government’s refusal to send a letter to the Swiss court and, in particular, to comply with the Supreme Court directive is an alarm call of the most compelling kind. The fear of conspiracy against the Supreme Court hangs heavy in the air. Our history can show no precedent for so foul a plot as that which this corrupt, dying regime has hatched against the Supreme Court.

One thing is clear: disillusion is fast setting in. People are getting impatient and are asking questions: Why is the Supreme Court not taking action against the corrupt rulers who are defying its orders and not implementing the NRO judgment? Why is no action being taken against ministers guilty of contempt of court? What is preventing the court from taking action against the prime minister who is openly defying it? Why is the court not exercising its awesome powers under Article 190 of the Constitution? Is there one law for the common people and another law for the corrupt few who rule this country?

The “historic encounter” between Justice Nasirul Mulk heading the bench in the NRO contempt case and Prime Minister Yusuf Raza Gilani over the issue of immunity for President Asif Ali Zardari reminds me of the famous confrontation between Chief Justice Coke and King James I. “This means,” said King James, “that I shall be under the law, which it is treason to affirm.” “To which,” replied Chief Justice Coke, “I said that Bracton saith, quod rex non debet esse sub homine, sed sub Deo et lege” (the king should not be under man but under God and law). This was the first confrontation between the king and the superior judiciary in England. Chief Justice Coke did not waver. He did not falter. He risked going to the Tower but he stood his ground.

In the altercation between Chief Justice Coke and the King, there is personified the basic conflict between power and law. Coke did not stop with affirming that even the king was not above the law. In Dr Bonham’s case, Coke seized the occasion to declare that law was above the parliament as well as above the king; that when an act of parliament is contrary to fundamental law, it must be adjudged void. The year was AD 1608.

Zardari is obviously much more powerful than King James was in AD 1608. He is President of Pakistan, Co-Chairperson of the ruling People Party, and First Diplomat, all rolled in one. He is above the Constitution, above the parliament, above the law, accountable to none. He has power without responsibility. For all practical purposes he has become the state. No wonder, he gets away with murder.

It is not always easy to say no to the sovereign. In late July (43 BC) a Centurion from Octavian’s army suddenly appeared in the Senate House. From the assembled gathering, he demanded the Consulship, still vacant, for his General. The Senate refused. The Centurion brushed back his cloak and laid his hand on the hilt of his sword. “If you do not make him Consul,” he warned, “then this will.” And so it happened. Today the Supreme Court Reborn finds itself in a similar situation. It faces the unenviable task of deciding the question of President Zardari’s immunity. How will the court decide this contentious issue? It “ought to do that,” in the memorable words of Chief Justice Coke, “which shall be fit for a judge to do.”

The court has to decide whether President Zardari’s case pertains to civil or criminal proceedings. He has no immunity if the proceedings are civil. The government of Pakistan was a civil party to the proceedings in the money laundering case in Switzerland, claiming that the money belonged to the people of Pakistan. The unauthorised letter written by Malik Qayyum to the Swiss court, in 2008, also stated that the government wanted to withdraw its case as a “civil party” in the money laundering case.

In the NRO judgment the court had observed: “It is to be noted that while making request to the foreign states for legal assistance, no request for criminal proceedings in such states can be demanded under Section 21 of the NAB Ordinance. The money laundering case in Switzerland was not opened upon the request of Pakistan; the Pakistan government became a civil party to the proceedings in Switzerland. One thing is clear: The issue is of civil nature and not of criminal nature. There is no mention of criminal proceedings, for the simple reason that it was a civil case in 1997 when the unauthorised letter was written by Malik Qayyum. It remained a civil case when the case was withdrawn. There might have been criminal proceedings in Switzerland but the government of Pakistan joined the proceedings in a civil capacity.

One thing is clear: Civil society must remain actively engaged. It must, as it did in the Judges’ Case, see the battle through. No single individual, no matter how well-intentioned, can do it alone. If civil society is to be effective, it must organise itself as an identifiable and disciplined force. Those of us who took the initial steps now need the support of civil society as a whole to see that the spirit of the Supreme Court judgement is carried through. We must be ready to join in actions which ensure that thieves and robbers never again take the destiny of the nation in their hands. They must atone, they must be cast aside, they must not be allowed to enjoy the tainted wealth that they have acquired. It is our duty to ensure that the judgement of the Supreme Court is put into full effect, in letter and spirit.



The writer is a former federal secretary. Email: roedad@comsats.net.pk, Roedadkhan.com