Don’t interfere with Pakistan’s courts

Hired Washington operators have recently disparaged the unanimous ruling by Pakistan’s Supreme Court that struck down the National Reconciliation Ordinance (NRO) issued by Pervez Musharraf in 2007. In a nutshell, that ordinance attempted to wipe the slates of a lot of political actors clean in one fell swoop. This would have allowed the guilty to keep what they had stolen. It also would have enabled those not entitled to hold public office due to previous breaches of public trust to return to office.

There seems to be an effort to get the United States government to bring its weight to bear on behalf of President Asif Ali Zardari, who they claim is a national security asset in the War on Terror. He is not happy with the decision because his was one of the slates that would have been wiped clean.

I thought it might be a good idea for someone who has actually read the 248-page decision,  knows Pakistani Constitutional law, and isn’t being paid by anyone with a stake in the outcome to give a brief overview of what the Court held and why.

First, the NRO was issued as a temporary act. Article 89 of the Constitution allows the president to issue temporary ordinances when Parliament is not in session. However, the ordinances lose all force if they are not ratified by the Parliament within four months.

The Supreme Court had given Parliament the opportunity to ratify the NRO, but it had wanted nothing to do with it. There was therefore no serious argument to be made for the NRO still being valid. The next question before the Court was whether or not it had ever been valid.

Because it instantly set aside some 3,000 cases involving some 8,000 defendants the Court found the NRO to be a constitutionally impermissible intrusion into the judicial realm. As a result, the Court held that the NRO would have been invalid even if Parliament had ratified it.

The Court cited from Benazir Bhutto’s book, Reconciliation: Islam, Democracy and the West. In it, she made it clear that Musharraf didn’t want elected officials of the Pakistan Peoples Party resigning from the assemblies when he sought reelection by those assemblies. The legitimacy of that election was already being questioned. She described the bargaining that went on between her and Musharraf and noted that she secured a commitment from Musharraf to remove the term limits that would prevent her from serving again as prime minister at a later date and that: “In exchange for the NRO, we reciprocated by not resigning from the assemblies, although we did not vote for him.”  

The Court found that this was a deal between Bhutto and Musharraf for personal objectives and that Pakistan as a whole had not derived any benefit from it, and that instead of preventing corruption it had encouraged it.

During the trial, former justice of the Peshawar High Court and Attorney General of Pakistan Muhammad Sardar Khan had argued that the NRO paved the way for those “charged with corruption and corrupt practices, plundering of national wealth and fraud, to come back, seize and occupy echelons of power again.” “Its aim,” he added, “seems to be to legalize corruption and the crimes committed by those in power, in the past.”

“We are in agreement with the above arguments of the learned counsel,” the Court concluded. 

The Court pointed out that if fostering trust and confidence in holders of public office had really been the government’s goal it could have increased the manpower of investigative agencies and the number of Courts so that the cases could be adjudicated more expeditiously. Instead, the NRO had simply dropped the cases.

The Court was particularly irked at the abandonment of Pakistan’s claims to looted wealth. It felt that the people’s money had been bargained away by officials acting in their own interest. The Court ordered the dropped cases reopened and established a monitoring cell of Supreme Court justices to ensure that the cases were pursued in good faith.

The Court found that the NRO would also have allowed those otherwise constitutionally prohibited from running for office to do so. The Court saw logic in the prohibition:

Corruption and corrupt practices, being a crime, if proved, against a ‘holder of public office’ takes away his qualification to contest the election because, prima facie, he has breached the trust of his electorate. 

Opponents of the decision have attempted to play the “Islamic ideology” card, but the Court made it clear that while the NRO violated certain Islamic injunctions, it struck down the NRO because it violated explicit provisions of the Constitution.
 
The Supreme Court is cleaning up the legal system in Pakistan. Those accustomed to the old system of special deals for the politically connected are not happy about it. That does not create an imperative for United States to interfere with the function of law in a sovereign state.

Thomas Houlahan is a former member of the New Hampshire House of Representatives. He served as an election monitor with the Center for Media and Democracy-Pakistan. He can be reached at This e-mail address is being protected from spambots. You need JavaScript enabled to view it .