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Back to the Future: The Pakistan Supreme Court's NRO Judgment

JURIST Guest Columnist Moeen Cheema, Associate Lecturer at the Australian National University College of Law, says that the Pakistan Supreme Court's December ruling in the NRO case reopens a long-running clash between the country's executive and the judiciary, a conflict that the executive cannot constitutionally win....

On December 16, 2009, the Supreme Court of Pakistan declared the country's controversial National Reconciliation Ordinance, popularly known as the NRO, unconstitutional on a number of grounds and decided that it was void ab initio. As a result, the court ordered that all cases that had been terminated under the NRO would be reinstated, including the money-laundering case against Asif Ali Zardari, current President of Pakistan, which was being pursued in Switzerland. The Supreme Court's decision is a landmark decision but one whose real ramifications and deeper political significance cannot be fully understood in the absence of an awareness of an intriguing period of Pakistan's history within which the NRO saga is unfolding.

The NRO was promulgated by Pakistan's military strongman, General Pervez Musharraf, on October 5, 2007. Through this ordinance the President sanctioned the automatic dismissal of thousands of criminal cases including corruption charges against the current President and several key politicians of his party as well as serious criminal cases against members of a main coalition party, the Muttahida Qaumi Movement (MQM). The re-opening of these cases by the Supreme Court has caused significant embarrassment to the federal government and creates the possibility that many leading members of these coalition parties, including some ministers, may be convicted and hence disqualified from being members of the Parliament.

It may be recalled that the General had earlier attempted to remove the Chief Justice of the Supreme Court in March 2007, but this attempt failed as the Chief Justice was reinstated by the Supreme Court in July that year after a movement by Pakistan's lawyers. Having passed the NRO pursuant to a political deal with the Pakistan Peoples' Party (PPP) of late Benazir Bhutto, the President sought reelection for a third term on October 6, 2007, at which point the PPP's abstention paved the way for the General's success. The NRO was challenged before the Supreme Court and on October 12 the apex court of Pakistan issued an order directing that the operation of the NRO be suspended until such time as the court reviews the ordinance in detail and pronounces its verdict on its constitutionality.

Musharraf's reelection was also challenged in the Supreme Court and, fearing an adverse decision, the General dismissed the entire superior judiciary and imposed an extra-constitutional state of emergency on November 3. Musharraf then announced the holding of elections for the national parliament under international pressure. However, upon the assassination of Benazir Bhutto in mysterious circumstances in December 2007 the elections were initially postponed and finally held in February 2008. The PPP, then headed by Asif Ali Zardari, late Benazir Bhutto's widower, rode a sympathy wave and won the most seats in the National Assembly. Later the PPP formed the federal government in coalition with a number of political parties, including one of General Musharraf's main backers, the MQM. Musharraf made a host of appointments to fill the vacancies created by the unconstitutional removal of a majority of the judges of the superior courts.

The PPP government initially accepted General Musharraf as the President of Pakistan. However, under pressure from the main opposition parties, the PPP relented and Musharraf was forced to give up the office of the President under a threat of impeachment in August 2008. In subsequent elections for the Presidency, Asif Ali Zardari emerged as the surprise candidate and won the elections comfortably. He was sworn in as Pakistan's 11th President in September 2008. Mr. Zardari's ascent to the Presidency was paved by two actions of the loyalist Supreme Court created by Musharraf—also known widely and unceremoniously as the 'Dogar Court' after the pretender Chief Justice Abdul Hameed Dogar. In one decision the Dogar Court declared the requirement of holding an undergraduate degree to be eligible to become a parliamentarian or a President to be unconstitutional. In another set of decisions, the Dogar Court vacated corruption charges against the President in March and April 2008 pursuant to the NRO, with which that court found no fault.

From March 2008 to March 2009 the PPP government refused to reinstate Iftikhar Chaudhry as the legitimate Chief Justice of Pakistan along with other judges who had been unconstitutionally removed by General Musharraf. A movement for the restoration of the legitimate court progressively gained momentum but was thwarted by the PPP government led by Asif Ali Zardari. The movement reached a crescendo as the retirement date of Abdul Hameed Dogar in March 2009 neared. This also coincided with the second anniversary of the CJ Chaudry's unconstitutional dismissal. A 'Long March' was called for by the lawyers in which Pakistan's emerging civil society, opposition political parties and the broader public wholeheartedly participated. The Long March threatened to destabilize Pakistan's elected government which finally succumbed and announced the restoration of Iftikhar Chaudhry and other judges.

With the reinstatement of CJ Chaudhry a new era in Pakistan's judicial history began to unfold. Contrary to the government's fears, the Chaudhry Court did not seek vengeance. Instead the court went about putting its own house in order. Pursuant to a constitutional petition, the court first declared General Musharraf's emergency actions to be unconstitutional but did not immediately strike down all legislative measures passed in the emergency period. The court gave the government some time to seek parliamentary approval of the legislative enactments made by General Musharraf during the emergency period. The court also declared all judicial appointments made in that period to be unconstitutional with the result that in one stroke all Musharraf and Zardari appointees (and loyalists) were weeded out of Pakistan's superior judiciary.

When the PPP government subsequently failed to muster parliamentary backing for the NRO, the Supreme Court began hearings on the validity of this unpopular ordinance in early December. Embarrassed by its failure to get the NRO passed by Parliament, the PPP government refused to defend the ordinance before the Supreme Court. This wasn't the end of the matter however, as when the Supreme Court sought information concerning the details of NRO beneficiaries, the government made futile attempts to mask such information. The revelation of the nature and extent of the charges and the names of the beneficiaries, many of whom continue to occupy key positions within the government, have caused significant erosion of the political credibility of the PPP government in general, and of President Zardari in particular.

The NRO saga hasn't ended. In fact, it has only just begun. In the coming months corruption charges will be pursued against several key PPP ministers and leading members. The media, the public, and the superior courts are expected to keep a close watch on the prosecution of these cases to see whether the government is able to steer the judicial process in favor of the accused. Questions shall also be raised about the eligibility of Mr. Asif Ali Zardari to hold the office of the Presidency. All of this may lead to a clash between the executive and the judiciary, a conflict that the executive cannot constitutionally win. The government's strategy in such circumstances would be to politicize the judiciary and create an impression that the Supreme Court is allying with Pakistan's military establishment in an effort to displace yet another elected government.
Timeline of Events:

March 2007: First dismissal of CJ Iftikhar Chaudhry

July 2007: Reinstatement of Iftikhar Chaudary by the Supreme Court

October 5, 2007: Promulgation of NRO

October 6, 2007: General Musharraf's reelection as President

October 12, 2007: Supreme Court's interim order barring benefit under NRO

November 3, 2007: Musharraf imposes emergency and dismisses CJ Chaudhry and judges

December 2007: Assassination of Benazir Bhutto

February 2008: Elections for Parliament

April 2008: The Dogar Court paves the way for dropping of charges against Zardari

August 2008: Musharraf resigns as President for fear of impeachment

September 2008: Asif Ali Zardari becomes President of Pakistan

March 2009: Long March and re-instatement of the Chaudhry Court

December 16, 2009: Supreme Court's final verdict on NRO
Moeen Cheema is an Associate Lecturer at the Australian National University's College of Law.


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