NRO, POWER TRACHEOTOMY, STATE AND INDIVIDUAL
By Rizwan Ghani

[This article first appeared in Pakistan Observer on January 24, 2010.]

In this article I am going to discuss NRO vis-à-vis power tracheotomy, constitution in the country and constitution in the globalized world so as to facilitate decision making process concerning economy, foreign policy and relationship between state and the individual. If I were to decide on most important comment given on detailed NRO judgment following after the Supreme Court’s (SC) landmark December short NRO order I think it is Atherminallah’s statement in which he said parliament should act. SC’s detailed NRO order has once again allowed the parliament to address the issue in accordance to rule of law. Now it is up to the parliament how it deals with tainted president and the ministers. SC by law and oath is mandated to uphold the constitution and will continue to do so. Therefore, parliament by upholding NRO ruling can end speculations about SC’s use of article 190, bureaucracy and or avert issuance of contempt of court notice to the PM. The ball of saving democracy is once again in lawmakers’ court. Ironically, Gillani has put at stake the very democracy that he promises to protect to save Zardari.

In a functional democracy- under the trichotomy of power principle- the power is shared between executive, legislature and the judiciary. And accordingly share of power of the executive and the legislative is no more or less than a judiciary. However, PPP government is of the idea that: a) lawmakers set limits of powers of judiciary (or for that matter parliament and the media). b) Judiciary cannot exercise powers of judicial review (JR) because it doesn’t have powers of JR. Courts’ powers of JR allow them to interpret law and determine whether acts of parliament are legitimate under the constitution of the country. US SC exercised its power of JR in Marbury v. Madison Case in 1803. PPP’s idea that who get how much power is fundamentally flawed and tantamount to usurping powers of the judiciary. PPP government visualizes judiciary everything but as equal, which is echoed in ANP’s Asfandyar (and) Malik’s statement that institutions should work within their limits. PM’s dilly dallying over implementation of SC’s short NRO judgment since December is not only a contempt of court but collusion against democracy. PM’s latest statement that NRO will be implemented under law, constitution is self-defeating because along with it he also added “Govt. is consulting legal experts on the issue.”

Keeping in view the careful handling of NRO case by the SC, I am of the opinion that PPP government will be given adequate but not unlimited time to defend itself. However, PPP is erroneously focused on protecting individuals and presidential form of government instead of restoring parliamentary form of government which America, UK and NATO are using to their advantage at the cost of democracy in Pakistan. It would be interesting to see if Aitzaz Ashan decides to protect democracy or defend a mindset that has robbed the poor of the country for last 62 years including Rs.1065 bln. I think there is a silver lining in the NRO because it will help the nation settle the office holders’ immunity issue under article 248 and shine enough light on articles 62 and 63. The detailed NRO judgment by denying parliament to make “escape” laws has fortified judiciary’s anti-corruption drive on lines of advance democracies. Reportedly Berlusconi reneged Monday on a vow to attend his own fraud trial in Milan. Allegedly he along with 11 co-defenders are facing charges for tax frauds, and siphoning off a total of 280 million Euros’ (Arab News January 19).

PPP government by linking NRO to Zardari has undermined SC’s struggle as one of the democratic institution to uphold aspiration of public seeking respite from corrupt ruling elite, abusive police and mafia culture. In this regard NRO is going to be a classic landmark case in which democracy will be delivered by “ordinary man” in whose name corrupt leaders have been ripping the state apart for individual gains. A day is not far when a man from the street is going to challenge rulers immunities under article 248. As and when it is going happen it is going to a shining example of “Democracy is the best revenge”.

SC’s NRO has global implications which I talked about in my article “Judiciary and Transnational Implications” published in the same space on March 17, 2008. The scrapping of 270 A/AA/AAA has undone the protection for LFO and thereby removing hurdles for initiating legal action against Musharraf and his western allies. It explains why so called pro-democracy w America, UK and its allies allegedly did their best to block restoration of judiciary in Pakistan so that they could continue with undermining of country’s sovereignty. It puts in perspective sudden push for a federal court despite SC’s ban to avert division of country’s judiciary in two parts. The idea is constitutionally ultra vires. West wants to protect its interests and those who protect it at the cost of Pakistan’s sovereignty, economic and strategic interests. Reportedly, an American Attorney has urged ICC to issue arrest warrants for Bush and his team including US AG Alberto Gonzales for alleged war crimes. SC NRO ruling has also asked for registration of case against Musharraf’s AG Qayum. A survey in UK has shown that every fourth British supports initiation of war crime investigation against war criminal Blair. It is opined that days of war criminals and abusers of human rights in America, Europe and Pakistan are numbered with growing EU-China relations and deep concerns over war crimes and human rights concerns in UK seen during Jack Straw’s Chilcot Inquiry testimony.

The developments on missing persons’ case in Pakistan SC are just the start of the accountability process which under the doctrine of international jurisprudence will soon expand to west and ultimately converge on ICC. It explains why US Defense Secretary is scaring Pakistan about terrorist related war. It is interesting to see that now Gates has taken over Delhi also, because he is giving policy statements on Pakistan from Delhi on behalf of his Indian counterpart. This emerging “Halloween” Indo-US coalition to scare Pakistan with another war is bonavita for those already stoking anti-Americanism in Pakistan. Delhi instead of playing from Washington’s mischief playbook in return for UNSC membership should not forget Beijing’s veto power. Reports of Pakistan’s “balkanization” are west’s wish list against every challenge. Look at “Is Europe headed for a breakup?” (WSJ dated January 17). Like PPP, Washington blames other for their problems which in fact are their own doings.

Finally, it would be unfair to associate SC’s landmark NRO judgment to individuals. It is about judicial renaissance in a developing country heading towards recognizing role of trichotomy of power in a democracy. The politicians will have to respect judiciary if they want to have corruption free accountable government. In terms of west, if judiciary is allowed to uphold the constitution it is only matter of time their war criminal leadership and allies will face the book as it is said what goes around comes around. Lastly, our caliphs are remembered for their generosity towards public in the name of God not for their loot and plunder. Of course kings pronate and beggars supinate. In it lies the lesson of strength and pride for the state and individuals, if only it is realized.
[Courtesy Pakistan Observer]

Regards