Hurtling towards the inevitable
The NRO implementation case before the Supreme Court may be crawling towards its end, but not without causing immense consternation among a multitude of people. The pervading perception that the incumbent government is corrupt and mala fide is taken as reason enough for it to be sent packing. But, law has its own course as it goes beyond the realm of perception alone and looks at hard core evidence before handing out a judgement. Even if, in the end, the government were to be held responsible for multiple lapses - in the instant case for not sending the required letter to the Swiss court - the process of law should be pursued relentlessly with no one left with even a modicum of doubt for casting aspersions. For that, and to that extent, one stands with the apex court.
In an environment signifying controlled defiance replacing unbridled arrogance, the state attorney has taken the plea that the prime minister is not guilty of contempt for not sending the letter to the Swiss court because, in his view, the president enjoyed immunity. The government’s position, therefore, inevitably hinges on the court’s interpretation of the immunity clause which reads: “No civil proceedings in which relief is claimed against the President or a Governor shall be instituted during the term of office in respect of anything done or not done by him in his personal capacity, whether before or after he enters upon his office…”. This is a trap that the government’s team of legal wizards may have inadvertently fallen into.
There are two critical factors which will be deliberated in the matter. First, it is not a new case that is being instituted against the president. The court is also not asking for continuing any proceedings against the president. Understandably, the apex court is only asking for correcting a wrong. The case against Mr Zardari was already before a Swiss court which, through a letter written by the then attorney general, had been withdrawn vide the promulgation of the NRO. Since the said NRO has been declared void ab initio by the apex court, all benefits accrued by people thereof, including the president, have to be reversed. No new case is being instituted. Request is also not being made for initiating any proceedings against the president. The apex court has only asked for restoring an old case to its original, pre-NRO days’ form.
The other factor would focus on the admissibility and applicability of the immunity clause outside (and inside) Pakistan. Understandably, the constitution of the country deals with matters of Pakistan alone and its contents cannot impact the laws of other countries, including those of Switzerland where the case was being investigated before it was withdrawn. No specific mention has been made in the constitution regarding any such applicability either. Therefore, it can be argued that the domain of the immunity clause does not extend beyond the geographical boundaries of Pakistan. Hence, there is a prospect that the court may adjudicate against the grant of immunity to the president in the matter of the Swiss case.
The above leaves out the moral factor: whether there should be an immunity clause at all concerning the conduct of certain people? Although this may not fall within the parameters of the present case, and the court may also not be empowered to amend the constitution, yet it is bound to elicit extensive comment in the days leading up to February 1. But, there is one other question that has plagued many a mind: if there were no NRO, would Mr Zardari be eligible to become the president of the country on the day when he submitted his papers? And if he wasn’t, are we living with an historical aberration which needs to be corrected? Because, after all, the foundations of any state and its leadership must rest firmly within the contours of morality and the rule of law!
But, does any of this have any meaning for the charlatans residing in the corridors of power? During their four years, the protagonists of the incumbent dispensation have taken the country and its people to a level of amorality that is terrifying. No longer is corruption viewed as a punishable offence. Good governance is not an occupation of the ruling mafias. The line distinguishing the state exchequer from personal coffers has been blurred beyond recognition. Destruction of key institutions is a priority with the proponents of ‘democracy’. Bartering state security for personal survival is a favourite indulgence. Politicising matters of law is a unique speciality. When questioned about any of this, the power corridors go hoarse with shouts of ‘conspiracies being hatched’ and ‘democracy being attacked’.
All this is happening in a country where political parties clamouring for democracy have no democratic traditions within their own ranks. They are like bloated monarchies where the leadership mantle is passed from the father to the chosen disciple and where, according to the 18th amendment, the right to send a notice of disqualification of a sitting legislator has been taken away from the parliamentary leader and given to the ‘owner’ of the political party.
In an encouraging development, the Supreme Court has admitted a petition for hearing pleading that elections should be held in all political parties at all levels. It may already be too late for that as the culture of operating political parties on the basis of avowed allegiance to an individual can be traced to the continued regression that the country has been irretrievably sinking into over decades. This would change only if and when our trappings of invincibility are challenged.
The writer is a political analyst and a member of the Pakistan Tehreek-e-Insaf. He can be reached at [email protected]