There can be little difference of opinion that the Supreme Court decision to declare the National Reconciliation Ordinance void ab initio is a positive development. It is true that political victimisation is standard practice in Pakistan and cases of corruption or improper behaviour can become a means for the establishment to put pressure on politicians. However, it is also true that giving blanket immunity to all political figures or senior bureaucrats involved in legal cases at the discretion of a military general is not an acceptable way to solve the problem of political victimisation or forge a national consensus as was alleged by Gen Musharraf at the time of the passage of the NRO. Neither can one man be given the right to decide at his own discretion whether or not to write off cases against political figures, nor can it be assumed that all cases that were closed under the NRO were actually a result of political victimisation.

Many of the prominent personalities that had benefited from the NRO have been involved in cases which cannot be easily labelled as politically motivated. The accumulation of assets by some of these personalities, which are no match with their lawful income, in itself provides enough justification for investigating the accusations. A blanket immunity given under the NRO was thus a purely political decision taken by Gen Musharraf in hopes of building an alliance that would prolong his rule. It is thus a moment of celebration for a number of reasons. One, it sets aside an unlawful action by a military leader. Two, it builds hope that justice will be done and people who have abused state power in the past will not be allowed to erase the past record. And, most importantly, it establishes the power of the judiciary.

In a country where the judiciary has for long played the role of upholding the constitutionally unlawful actions of the military on the basis of a doctrine of necessity, this unanimous decision of the Supreme Court reconfirms public confidence in an increasingly independent judiciary. It is now critical that the cases revived after this decision are subjected to proper course of law. It might be true that many of these cases have already been prolonged for many years, but this in itself does not mean that these cases can thus be closed or expedited, as is argued by some. The fact is that most of the Pakistani public which ends up having to take cases to courts faces such a prolonged period of engagement with the courts before the case is decided.

Of course, this is not to say that it is fair to have a judicial system where cases linger for years. The idea is to argue that if the ordinary public has to cope with years or decades of litigation before getting a verdict, the political and bureaucratic elite should be considered no different. The need is to invest more in the judicial system and have enough judges in place to ensure that the judicial system on the whole becomes capable of ensuring timely verdicts. At the same time, however, there is need to ensure that the prominent cases revived after this decision are prioritised. Due to their high-profile nature of the cases the decisions taken on them will be followed by the public closely.

Independent decisions by the judiciary in these cases will help build further confidence in the judicial system and help establish the much needed pressure on the senior officials and political leaders that no one is above the law. The biggest problem of Pakistan is the elite culture where the civilian, political, and military elites alike exploit the system to protect their unlawful actions and abuse of state power. The various measures introduced by the previous governments in the name of establishing accountability have actually provided incentives for further corruption rather than building fear of being caught. The National Accountability Bureau is the classic case of a state-led effort to provide perverse incentives.

It introduced a model where the culprit could return a small fraction of the embezzled amount and be cleared of all charges. Rather than awarding punishment for crime it actually introduced a model of providing a legal cover for the crime. The culprits were allowed to keep a major portion of the embezzled state resources and also retain their social status. It is critical that all such measures for protecting crimes of the elites that have been promoted by the previous government be removed from the system and justice be allowed to prevail. The Supreme Court decision to declare the NRO invalid is a positive step towards that. It is critical that all decisions on these cases be taken in the courts of law under legal and public scrutiny.



The writer is a research fellow at the Oxford University. Email: mb294@hotmail .com