Pervez Hoodbhoy strikes back; More on the NRO ruling

More on the NRO ruling below – but this response by Pervez Hoodbhoy to the scurrilous attack on him by an expat professor deserves mention (he doesn’t usually respond to personal attacks),  published originally in Counterpunch on Dec 14 (later on Chowk on Dec 18) and is worth a read: “Is The Cheque In The Mail? – The Confessions of a Pakistani Native Orientalist”

Below, more about the NRO short order and its implications, including the emphasis on morality and acceptance of the “Islamic provisions” of the Constitution:

1. Two comments on Dec 19 by Asma Jahangir on the NRO ruling, one in a BBC Urdu interview, and “Another aspect of the judgment” oped in Dawn – Extract: “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.”

2. Aasim Sajjad Akhtar argues against simplifying the NRO ruling in ‘After the verdict’ (The News on Sunday, Dec 20): “…the structures that produce one bad apple after another need to be interrogated and eventually replaced. There can be no shortcut to justice, and the ‘rule of law’ brigade would do well to bear this in mind.”

3. ‘Legal, moral, political‘ – in this oped (Dawn, Dec 20) Asha’ar Rehman points out some inherent ironies and contradictions, eg “If the legal, political and moral must mingle, how can a lawyer, hailed as the author of the constitution, allow himself to defend a dictator who held the document in abeyance, and also defend his referendum — and then, a few years later, contest an ordinance fashioned by the same dictator?”

4. Letter to Chief Justice Ifitkhar Chaudhury from Bilal Qureshi at Foreign Policy Blogs, December 18, 2009, in which he calls upon the CJ to:

  • Initiate Suo Moto action against those who orchestrated an attack on Pakistan’s Supreme Court when then Prime Minister Nawaz Sharif was about to be disqualified from holding public office.
  • Seek and deliver justice to retired Chief Justice Sajad Ali Shah.
  • Institute an independent panel to review corruption charges leveled against the CJ by General Musharraf.

He adds: “I am sure you will understand most Pakistanis feel your actions are not the first time that the Pakistan Army has played a role in undermining a civilian government using NRO or some other such excuse as a cover.

“Your critics claim that the labels, the charges, the smokescreen may have change, but the end result has remained the same. For example:
“1. ZA Bhutto became a victim of the cooperation between the military and part of the judiciary.
“2. Nawaz Sharif was thrown out by the military and his expulsion, especially the second one, was promptly validated by the judiciary to help a military dictator strengthen his grip on power.
“3. Benazir Bhutto’s governments were overthrown by the army because she was trying to take put of Pakistan’s foreign policy in the control of parliament and away from the generals.
“4. And now President Zardari is being hounded out of pwer by the same forces – the judiciary and army.

“Pakistanis understand why whenever a civilian leader, who is also democratically elected, tries to apply brakes on the unchecked growing power of men in uniform, there is always a crisis created, allowing the army to step in,
ostensibly to ‘save the country.'”

To this comment, Shoaib Mir in Lahore adds that the Supreme Court should also “take suo moto action and strike off the highly partisan Contempt of Court law? Why should any defendant suffer a judge whose impartiality is in doubt,
integrity questionable and reputation unflattering.”  And also please “take suo moto action against a former chief justice of Pakistan Dr Nasim Hassan Shah, the only living judge out of the 9 on the “hanging bench” (5
of the high court + 4 supreme court) involved in the judicial murder of Zulfikar Ali Bhutto? You can do this on the basis of new evidence provided by none other than Justice Nasim Hassan Shah himself, and which was not available at the time of the said trial. This new evidence is: a) his admission on Geo TV’s JawabDeh that he was pressurized by Gen Zia/CJ Anwarul Haq, b) his book “Reflections & Memoirs, where he writes in detail about how he met Justice Dorab Patel to have his decision of acquittal changed.”

3. Comment on my last post from a reader: the courts can only decide those cases which are brought before them for adjudication, and taking that line of thinking is “trying to dig up graves”.

However, some of us would say that bringing up Asghar Khan’s long-pending petition re the misuse of ISI funds cannot not exactly be called digging graves. The point is that Zardari was in prison for 11 years or more. He was then in exile, after which the NRO was promulgated and the cases against him and many others were withdrawn.

Lawyer Asad Jamal in Lahore adds: “it is an established principle of law that cases decided even under laws which are declared ultra vires are considered past and closed transactions.”

He further draws attention to these sentences in “the HISTORIC short order” (please read carefully to understand the implications, emphasis his):

However, salient features of the Constitution i.e. Independence of Judiciary, Federalism, Parliamentary form of Government blended with Islamic provisions, now have become integral part of the Constitution and no change in the basic features of the Constitution, is possible through amendment as it would be against the national reconciliation, evident in the promulgation of the Constitution of 1973, by a Legislative Assembly. Therefore, promulgation of the NRO seems to be against the national interest and its preamble is contrary to the substance embodied therein. Thus, it violates various provisions of the Constitution.”

Asad Jamal: “The SC short order has amended the Constitution by impliedly striking down Article 248 in as much as the SC has ordered for proceeding of Swiss cases to be revived which means the President does not enjoy immunity. The order is extremely dangerous for the reason, among others, that it has taken cue from Hafeez Peerzada’s argument that Article 2A (Objectives Resolution) and other Islamic provisions are part of the basic structure of the constitution.
“None of the lawyers even tried to argue against such reasoning because… they don’t have the courage to publicly disagree… It doesn’t matter who do I vote for, this country will always be ruled by non-elected people.”

Para 14 of the order is the most dangerous:

“14. In depth examination of the NRO suggests that it has not been promulgated to provide reconciliation on national basis as this nation has seen reconciliation in 1973, when a Constituent Assembly gave the Constitution of 1973 to the nation, guaranteeing their fundamental rights, on the basis of equality and brotherhood, as a result whereof,…”

It goes on to say:

“However, salient features of the Constitution i.e. Independence of Judiciary, Federalism, Parliamentary form of Government blended with Islamic provisions, now have become integral part of the Constitution and no change in the basic features of the Constitution, is possible through amendment as it would be against the national reconciliation, evident in the promulgation of the Constitution of 1973, by a Legislative Assembly. Therefore, promulgation of the NRO seems to be against the national interest and its preamble is contrary to the substance embodied therein. Thus, it violates various provisions of the Constitution…”

(ends – for now)

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3 Responses

  1. This is how the CJ repays the people of Pakistan. ‘Azaad Adlia” is now “Arm’y Adlia”

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  2. It is a pity that instead of rallying with the civilian forces and taking on the military establishment for its past and present misdeeds, crimes and transgressions, CJP and his court has pounced upon a civilian leader in a partisan and uncivilised manner. By doing this, the court has not only lost its respect, neutrality and morality but has also managed to strengthen the hands of army and its agencies at a time when a critical and cut throat battle was going on behind the scenes between the elected civilian government and the military bureaucracy. NRO was unconstitutional and was thus not even supported or contested by the federal government. But the manner in which the whole court proceedings were conducted to adjudicate upon it showed that the apex court was not interested in delivering justice or upholding the constitution but was seeking medeival revenge from the person who denied them their restoration for more than a year and was making political way for opponent of that man, who happen to be the prime mover of that restoration. It is really painful to see all the struggle and sacrifices given for the establishment of rule law coming to a naught through this parochial, biased and short-sighted judicial approach. December 16 has been and will remain a sad and tragic day in our national history!

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  3. They should also take suo moto notices against :

    1. The vast wealth accumulated by the folks displaying shining boots… on the kind of salaries they get, officially that is.

    2. The judge/jury who ruled that a 3rd class degree is better and hence acceptable than a 1st class degree.

    3. How the vast number of crusaders could manage their home and hearth plus much else so well… without doing a day’s work for 2 whole years… ??

    4. What is the secret of the huge wealth of the land of the pure’s version of Moose Miller… ??? He comes from an ordinary background and couldn’t pay the tution fees @ college. He played cricket when the game had plenty of glamour, but very little money. Not many ads too. He failed as a writer, columnist and a commentator.

    P.S. I remember sometime back… there was a show (some 3/4 yrs back, I think), where this chap and another fellow (don’t remember his name… he is a politician and smokes the cigar) were taking part. When this chap tried to say something nasty… the other fellow simply said: if we put an inquiry commission into the source of your charity funds, etc… your entire image will go for a toss. Doodh ka doodh aur paani ka paani ho jayega. Or words to that effect.

    This chap never uttered another word after that.

    That says it all. Doesn’t it… ???

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