The NRO case, Dr Mubashar Hasan and others versus the federation, has once again stirred a hornet’s nest.


There is thunderous applause for bringing the accused plunderers and criminals to justice and widespread speculation on the resignation of the president. Very little analysis is being done on the overall effect of the judgment itself.


While, the NRO can never be defended even on the plea of keeping the system intact, the Supreme Court judgment has wider political implications. It may not, in the long run, uproot corruption from Pakistan but will make the apex court highly controversial.


Witch-hunts, rather than the impartial administration of justice, will keep the public amused. The norms of justice will be judged by the level of humiliation meted out to the wrongdoers, rather than strengthening institutions capable of protecting the rights of the people.


There is no doubt that impunity for corruption and violence under the cover of politics and religion has demoralised the people, fragmented society and taken several lives. It needs to be addressed but through consistency, without applying different standards, and by scrupulously respecting the dichotomy of powers within statecraft. In this respect the fine lines of the judgment do not bode well.


The lawyers’ movement and indeed the judiciary itself has often lamented that the theory of separation of powers between the judiciary, the legislature and the executive has not been respected. The NRO judgment has disturbed the equilibrium by creating an imbalance in favour of the judiciary.


The judgment has also sanctified the constitutional provisions of a dictator that placed a sword over the heads of the parliamentarians. Moreover, it has used the principle of 'closed and past transactions' selectively.


It is not easy to comprehend the logic of the Supreme Court that in a previous judgment it went beyond its jurisdiction to grant life to ordinances — including the NRO — protected by Musharraf’s emergency to give an opportunity to parliament to enact them into law.


If the NRO was violative of fundamental rights and illegal ab initio, then whether the parliament enacted it or not it would have eventually been struck down. By affording parliament an opportunity to own up to the NRO appears to be a jeering gesture unbecoming of judicial propriety.


The NRO judgment has struck down the law also for being violative of Article 62(f), which requires a member of parliament to be, 'Sagacious, righteous and non-profligate and honest and ameen'.


Hence, the bench will now judge the moral standing of parliamentarians on these stringent standards set by the notorious Zia regime. This article of the constitution has always been considered undemocratic and a tool to keep members of parliament insecure.


If parliamentarians, who also go through the rigorous test of contesting elections in the public domain, are to be subjected to such exacting moral standards then the scrutiny of judges should be higher still.


After all, judges are selected purely on the value of their integrity and skills. Judges who erred in the past seek understanding on the plea that they subsequently suffered and have made amends. Should others also not be given the same opportunity to turn over a new leaf? How will sagacity and non-profligate behaviour be judged?


Apart from Dr Mubashar Hasan, not even the petitioners of the NRO case are likely to pass the strenuous test laid down in Article 62 of the constitution. This could well beg the question whether it is wise for those in glass houses to be pelting stones.The judgment goes much further. It has assumed a monitoring rather than a supervisory role over NAB cases. In India, the supreme court directly interfered in the Gujarat massacre but it did not make monitoring cells within the superior courts.


Is it the function of the superior courts to sanctify the infamous NAB ordinance, the mechanism itself and to restructure it with people of their liking? It is true that the public has greater trust in the judiciary than in any other institution of the state, but that neither justifies encroachment on the powers of the executive or legislature nor does it assist in keeping an impartial image of the judiciary.


The long-term effects of the judgment could also be counter-productive; perpetrators are often viewed as victims if justice is not applied in an even-handed manner and if administered in undue haste with overwhelming zeal. It is therefore best to let the various intuitions of state take up their respective responsibilities because eventually it is the people who are the final arbiters of everyone’s performance.


By Asma Jahangir
The writer is chairperson of the Human Rights Commission of Pakistan.
Daily Dawn Saturday, 19 Dec, 2009
Link

Judicial tier of the state should not intervene in other two tiers (Executive and legislative) and vice versa because our state can not afford any major shock at this sensitive juncture. We are already running a weak state with lot of grievances, and disagreements among the various sects, provinces, departments, civil and military bureaucracies, etc. This is not the time to adopt ultra virus acts. Each decision should be made after taking into account all these threats. We have already two bitter enemies along our borders who are channelizing these frustrated / demotivated / discouraged fractions in their own ill aims against our beloved state. We need not provide safe opportunities to our security guards to run our state affairs. They know how to guard but they don't know how to administer, how to govern, how to manage, and how to unite the various parts of the country. Get them better utilized in their own sphere of scope.
Judicial activism should not invite political turmoil. We have survived some serious shocks in recent past but our immune system is not that strong to absorb some more shocks. Our authorities should measure state's risk petite before taking hasty decisions. Our international counterparts are striving hard to get every chance to micro manage us. We should not create those situations where peace making delegations are sent to the nations and are kept under slavery.

I wonder why people consider it encroachment of judiciary in executive's realm. NRO indeed was a discriminatory law and should have been dealt with as such. Its the victory of Rule of law which implies that no person is above the law and every citizen is equal in the eye of law.

NRO was a discriminatory law to start with and SC has the right to declare a law unconstitutional if it contravenes with the constitution. Why are we confusing success of democracy with Zardari's future as president which was controversial from day one. The judgment clearly reflects the public opinion in Pakistan. Shouldn't it be about the democratic process and institutions rather than individuals.

Asma Jehangir presented her views in highly uncivilized manner in DunyaToday but she had no cogent arguments rather than occasional shouts and interrupting other speakers.

__________________
Whatever you do will be insignificant, but it is very important that you do it.
-Gandhi

@ Whoever concerns

The SC verdict pertaining to NRO will not morph into a corruption-free Parliament in the near future. In fact, there'll be alot more. Those who are not entitled under the NRO and its repercussions will consider themselves incorruptible. Nawaz Sharif swept majority of votes during his last in office. The so-called transparent elections made him realized nearly as Ameer ul Momineen. The fallout of the election was 'civil dictatorship' in the country.

NRO should be scrapped at once. The attitude of the court, however, is questionable. As I mentioned elsewhere that the court's ruling on the NRO was legally moral but morally illegal, for it will foster racism and fester the wounds of already provincialism in the country. I can't understand why Mr. Zardari is so much an eyesore for majority of punjabis since the days of his election to the presidency? Is it the cause that the office of the President was "earmarked" for mr sharif. Or is it because he wanted to curtail the punjabi-dominated military's power and wanted to bring 'em on par with their real job, i.e, on the borders! If so, he's probably reminding the army of their 'constitutional job' which goes like this as:

Article 244: (Oath) "I........, do solemnly swear that I will.....uphold the constitution (are you kidding).....(and) that I will not engage myself in any political activities whatsoever (say that again).

Such is the oath that every army personnel before commencement of his duties. Moreover, the Quaid has something very categorical to say on 14 August, 1947:

"Do not forget that the armed forces are the servants of the people and you do not make national policy; it is we, the civilians, who decide these issues and it is your duty to carry out these tasks with which you are entrusted".

Now what is the question of army or isi putting any question before the civilians when they tend to forge friendly relations with India with Kashmir on the backburner? Why the PM was forced to withdraw from it notification way back after Mumbai carnage putting isi under the interior ministry? Where is the supreme court now? Why there is such an immunity to the "NAB ZAADAS" as punjab law minister put it?


Regards,
Khanabadosh