In a well crafted unanimous verdict, the 14-judges full bench of Pakistan s Supreme Court on Friday (July 31, 2009) declared illegal the emergency imposed in November 2007 by the then President General Parvez Musharraf but failed to invalidate 37 Ordinances issued by him during the emergency period or validated under emergency.
However, the Supreme Court invalidated ordinances relating to the higher judiciary promulgated during the emergency , including the Constitution (Amendment) Order, 2007, the Constitution (Second Amendment) Order, 2007, the Islamabad High Court (Establishment) Order 2007, the High Court Judges (Pensionary Benefits) Order, 2007 and the Supreme Court Judges (Pensionary Benefits) Order, 2007.
Thus while the entire judicial edifice created in the wake of November 3-December 15, 2007 emergency has been dismantled, the 2008 general elections and the political order emanating from these has been endorsed as constitutional, leaving President Zardari and the Parliament as well as financial and administrative actions taken during the unconstitutional emergency intact.
The Supreme Court has cited "the principle of the welfare of the people as the ultimate law to provide protection to the system which practically came into existence under the controversial National Reconciliation Ordinance of October 2007.
In a shocking contradictory stance, the verdict declared the appointment of Justice Abdul Hameed Dogar as Chief Justice of Pakistan, in November 2007, unconstitutional and invalid but validated "all administrative or financial acts performed by him or of any oath made before him as the Chief Justice.
It is not difficult to guess why the Supreme Court, headed by Chief Justice Iftikhar Chaudhy, has taken such a contradictory step and validated Chief Justice Dogar s actions? The answer is very simple. It dare not invalidate the oath of office of President Asif Ali Zardari administered by Chief Justice Dogar.
The Supreme Court verdict also shielded President Zardari by declining to rule on the controversial law, the NRO granted amnesty to politicians, bureaucrats and political workers who were accused of corruption, embezzlement, money-laundering, murder and terrorism. Not surprisingly, the News carried the story of NRO promulgation by General Musharraf on October 6, 2007 with the telling headline: "Corrupt politicians given a clean slate.
The NRO states:
"Notwithstanding anything to the contrary in sub-section(1), the Federal Government or a Provincial Government may, before the judgment is pronounced by a trial court, withdraw from the prosecution of any person including an absconding accused who is found to be falsely involved for political reasons or through political victimization in any case initiated between 1st day of January, 1986 to 12th day of October, 1999 and upon such withdrawal clause (a) and clause (b) of sub-section (1) shall apply."
Interestingly, among the others who benefited from the NRO are President Zardari, incumbent Interior Minister Rehman Malik, Maulana Fazlur Rehman of the Jamiat Ulema-e-Islam that is a junior partner in the ruling federal coalition, former prime minister Zafarullah Khan Jamali and a host of retired army generals. Others who benefited from the NRO include: President Zardari s father Hakim Ali Zardari, MQM leader Altaf Hussain, former Interior Minister Aftab Sherpao and current Pakistan s ambassador to US, Hussain Haqqani.
President Zardari is one of the main beneficiary of the NRO. On 5 March 2008, Zardari was cleared of five corruption charges as part of a court ruling which "abolished the cases against all public office holders , including corruption and illegal use of property under NRO. He had another trial on the remaining charges on 14 April 2008, when he was cleared under the same NRO.
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It may be recalled that Chief Justice Iftikhar Muhmmad Chaudhry had revoked the ordinance but he was dismissed after Musharraf declared an emergency Nov 3, 2007. His successor, Abdul Hameed Dogar revived the NRO in February 2008.
The Supreme Court verdict against General Musharraf came seven weeks after Chief Justice Iftikhar Chaudhry met at his office the Special Envoy to Pakistan and Afghanistan, Richard Holbrook. It was appalling to the nation. Explaining the unusual meeting that sparked many speculations, Dr Faqir Hussain, Registrar of the Supreme Court, pointed out that the meeting took place at the request of Mr. Holbrook and at the advice of Foreign Office. One wonders since when the CJP has started accepting the advices of the FO? "Matters relating to judicial reforms as per national judicial policy and the whole judicial structure of Pakistan were discussed, Dr Hussain said.
According to Dawn, the meeting came at a time when Pakistani judiciary is seized with litigations that directly involved interests of the United States. A particular case of concern to the US is that of the missing persons in which intelligence agencies have been accused of either abducting people on suspicion of terrorism or handing them over to the United States. The case of Dr Aafia Siddiqui, who was reportedly abducted from Pakistan and is now in US detention, is also pending in courts. The Supreme Court spokesman denied that the issue of missing persons came up in the meeting.
Interestingly, immediately after his meeting with the US Envoy, the chief justice went to the presidency to attend the oath-taking ceremony of newly appointed Federal Shariat Court Chief Justice Agha Mohammad Rafique. There he had a one-to-one meeting with President Asif Zardari. It was for the first time since his restoration that the chief justice visited the presidency and met President Zardari.
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