The December 16, 2009, ruling of the full-bench of the Pakistan Supreme Court declaring null and void Pervez Musharraf’s National Reconciliation Ordinance (NRO) opens up a new front in Pakistan’s internal politics and governance. The decision of the Supreme Court to declare the NRO null and void was expected since the ordinance was in violation of some basic provisions of the Constitution.
The ruling however brings forward the tensions that exist between the three branches of the government, namely, the judiciary, the executive and the legislature. In a functioning democracy their interaction produces creative tensions that make the government stronger and help the society move forward. Unfortunately in Pakistan’s case because of failure of developments in all the three of these branches due to a dysfunctional political system, Pakistan’s progress remains stymied.
Zardari’s earlier failure to have the NRO approved by the Parliament for want of the required majority and the latest slap in the face from the Supreme Court further damages his credibility, which to start with, at best has been minimal. The only way now that Zardari can survive criminal investigation and prosecution is by using his immunity as the President in office. If he tries to do this, he is going to be a President who is constantly at the mercy of his Prime Minister and Chief of the Army Staff.
As usual in Pakistan the rumor mill is busy. The people see that Zardari and Gilanis` government is in power but it is not ruling. From Zardari`s exit and the collapse of the government, to a new president with continuation of the ruling PPP `s government to the usual outcome in Pakistani political crisis of Army takeover, are all being discussed and debated by the people and in the media.
The Army has been the only institution which has held power for most of Pakistan’s existence. It has assured Pakistan’s survival, all be it in the shape the country is in. It is believed by some that in the resultant, post-NRO milieu of a powerless civilian government, the judgment ironically would give impetus to the extra-constitutional impulses of the Army; recently though the Army seems to have given up the old ways of overtly grabbing power during political crises in Pakistan. The Army yet may now be forced to do so, if the conditions worsen, not only on account of the political turmoil but also due to the threat of Jihadist insurgents who will use this opportunity to destabilize Pakistan further.
Pakistanis cannot therefore be too optimistic with the NRO verdict and start hoping for a better future for Pakistan, etc. They also realize that the judiciary will only really be free if it is "allowed" to hear and adjudicate cases against military/ISI; the judiciary is as much free as the military wants it to be.
The legislature in Pakistan is incapable of coming to grips with any of Pakistan’s problems, leave alone the constitutional crisis that Pakistan is facing now after the NRO verdict.
Though the legislative body is composed of elected officials yet many have little credibility among the people. Their election victories are understood to be mainly due to unfair advantages that they or their families have acquired because of their illegally amassed wealth or connections and also due to the fact that the electorate in Pakistan is mainly uneducated and poor. In Pakistan the political campaigns are personality-based and not issue-driven.
The NRO decision also poses another problem. The Supreme Court's decision can have its impact only if it is implemented. It is not quite clear as to who must implement this and how. Already a senior government official has been sacked on the orders of Prime Minister Gilani for enforcing the verdict against a Federal Minister!
The National Accountability Bureau in Pakistan which was established mainly for the purpose of bringing those under the purview of law who had violated it through corrupt business practices by taking advantage of their office or business connections. It was to report to the administration at a high level giving it a free hand and authority. After a promising start this institution was totally overwhelmed by the power and influence of those who it had set out to investigate; interestingly, the present appointee under Zardari`s administration to head the institution has been under investigation and so are other high ranking officials and cabinet ministers for a while. It is like the fox guarding the hen house!!
It is an established principle of constitutional law under the separation of powers doctrine that the powers of the judiciary are strictly limited to the interpretation of the Constitution and judicial review.
During the last couple of years the judiciary has been trying to negotiate its legitimate place in Pakistan's emerging framework of democracy. This is not proving to be easy as we are seeing now without it stepping on the legislative and other branches. The judiciary in issuing directives to the agencies of the government such as NAB might be overstepping its domain and impinging upon the powers of the executive branch. The judiciary is in the business of interpreting the law by rendering judgments and not enforcing the law, which is the exclusive function of the executive, with the sole exception of cases that deal with matters of contempt of courts.
The critical task of helping transform Pakistan’s political culture to an actual democratic form rather than just by lip service or on paper can be accomplished only if all the three branches of the Government are in sync.
There is need to establish and strengthen the dual principle of the rule of law and equality of all before the law; these have been absent in the daily life of the Pakistani people.
The judiciary can take the lead in constitutional reforms .Through these changes would come about that would give the ordinary people their rights and break the monopolies of power, which have acted outside the law to keep Pakistan as their own fiefdom.
The primacy of constitutionally based civilian rule is only possible if feudalism is progressively dismantled, religion is confined to its appropriate role away from politics and the Army learns to obey and respect the constitutional order. All this means that none should hold themselves above the law and the processes of transparency and accountably are firmly adhered to.
This is a tall agenda and obviously it is not entirely the responsibility of the judiciary. From the ordinary citizen to all other branches of government, everyone must participate and cooperate to implement the change. The judiciary must remain entirely engaged in its own primary function of interpreting the constitution and the laws.
The decision of the Supreme Court regarding the NRO is only the beginning of a process long overdue in Pakistan.
As Faiz says in one of his famous poems:
Abhi giraniyay shab men kami nahi aii
Nejate` deeda u dil ki ghari nahin aii
Chalay chalo ke wo manzil abhi nahin aii. Faiz
The darkness of the night has not ended yet.
The moment of liberation of hearts and minds has not come yet.
Keep going, for we have not come to our destination yet!
(Dr.Nazir Khaja is the founder of the Council of Pakistani American Association (COPAA), Los Angeles. Nazir.khaja@gmail.com)
