Judges indirectly benefited from NRO: govt
By Rauf Klasra
ISLAMABAD: The federal government, in its updated review petition, has told the Supreme Court judges that they too were indirect beneficiaries of the much condemned National Reconciliation Ordinance because had Benazir Bhutto not negotiated the NRO with General Pervez Musharraf in 2007, they all would have neither been released from detention nor restored. So the entire Pakistan benefited from the promulgation of the NRO by getting rid of dictatorship.
The government has reminded Chief Justice Iftikhar Mohammad Chaudhry, without naming him but with obvious references, of his own past role as part of a larger bench headed by the then CJ Irshad Hassan Khan, which had validated the military takeover of General Musharraf on October 12. It said instead of resigning from the bench, the Supreme Court judges had validated the military takeover in the Zafar Ali Shah case (PLD 2000SC 860). It reads: “In the Zafar Ali Shah case which still holds the field when filed, the Constitution was held in abeyance, but the then SC judges had not walked away from peculiar circumstances, but validated the rule of General Musharraf. This important point has been ignored/overlooked in the instant case (NRO)”.
The Supreme Court judges have also been told in clear words that they were encroaching upon the powers of parliament to enact or delete any law and that the president is part of parliament and authorised to issue any ordinance like the NRO.
The federal government has also objected to certain points of the judgment, saying they adversely reflect upon the supremacy of an elected parliament, which represents the 160 million people of Pakistan.
The government has also told the Supreme Court judges that they had “misinterpreted Islamic history and laws with due respect in a case of political scope” as they did not have the services of an Islamic jurist who might have assisted them during the proceedings.
It has also defended the promulgation of the NRO on the grounds that the Holy Prophet’s (PBUH) first step in Madina was that of reconciliation vide Misaq-e-Madina. “No bigger or greater precedent can be presented in the court of the Islamic Republic of Pakistan. The judgment under review failed to take note of it,” the review petition said.
In its updated review petition whose copy is exclusively available with The News (partly reported on Wednesday), the federal government has pointed out several “flaws” in the NRO judgment. One quick look at the 26-page review petition shows that unlike the past stand of the government of not defending the NRO, this time the PPP government has decided to apply zero-tolerance strategy to get the decision against NRO reversed. The petition is full of criticism of those judges, both retired and serving, who had not only validated military rules in the past, but had facilitated the generals.
The review petition says the SC has failed to correctly interpret the preamble to the NRO, which makes it abundantly clear that the purpose of the ordinance was to promote national reconciliation and that the desired purpose was achieved. Similarly, it said the SC did not take into account the peculiar circumstances under which the NRO was promulgated. The petition said the ordinance enabled the leaders of the main political parties to return to Pakistan and participate in elections, paving the way for transition from military dictatorship to democracy.
This process of reconciliation eventually led to the restoration of democracy in the country resulting in the release of detained judges and their eventual restoration by the democratic government. “It is noteworthy here that prior to this, endless long marches of all the political parties, civil society and bar associations were unable to get the judiciary restored or get the detained judges released. The nation as a whole, therefore, did derive direct benefit from NRO in the form of return to democracy, forcing a military dictator to shed uniform,” it said.
The review plea says it was a matter of record that prior to the promulgation of the NRO, some leaders tried to enter Pakistan at Lahore (Shahbaz Sharif) and Islamabad (Nawaz Sharif on September 10, 2007) but they were sent back and no body could rescue them from the clutches of those who had forcibly ousted them from their own country.
The review petition said that political victimisation had been going on when the opportunity arose through the NRO. This is born out by the book of PML-N leader Nawaz Sharif. It said that nearly all the major political parties benefited from the NRO, which in effect helped to heal the nation’s wounds and to move towards a mature democracy. It argued that the NRO cannot be regarded as a deal between two individuals as it was legally promulgated by the president under Article 89 having acted upon a summary from the cabinet, which indicates that the then government of the day fully supported the NRO.
The petition said it might be noted that during the Musharraf regime, political leaders facing similar charges were “granted pardons, released and allowed to travel abroad upon simple applications and without suspension of their sentences from the court or even without having any recourse to the judicial system of the country. Such releases and orders between two individuals, however, remained always intact and valid”.
The petition said the powers of the president for grant of pardon are unfettered, adding under Article 50 the president represents the will of the people of Pakistan being an integral part of parliament. Therefore, any ordinance issued by him cannot be seen in isolation, the petition says, wondering that on one hand, the Supreme Court had declared that the president did not have the powers to promulgate NRO but in the same judgment, it also concedes that parliament had the powers to enact the NRO. “If parliament had the ability to pass the NRO into the law, the president who is part of parliament had the powers to promulgate an ordinance in respect of NRO being part of parliament”.
In its concluding chapter, the review petition says it was the great vision of Benazir Bhutto that helped pulling the country out of the quagmire through reconciliation and achieved the goal of people’s rule. “She laid down her life for a great cause. Therefore, national reconciliation is and will always remain relevant both for the institutions and democracy.
“The present elected government firmly believes in the ideals of national reconciliation set out by Benazir Bhutto and lettered with her blood. That is why, to bring back normalcy into the areas of Swat and Malakand, parliament of Pakistan adopted once again the same mode of national reconciliation when the Shariah regulation was prepared, offered and promulgated by the president of Pakistan, which was duly endorsed by the government of Pakhtoonkhwa,” the petition reads.
Source: The News