By: Barrister Amjad Malik (26/03/2012)
Prime Minister is in a dock waiting to hear the outcome of proceedings in which he is alleged to have committed contempt for not following court orders. On 16 December 2009 Supreme Court rejected National Reconciliation Ordinance 2007 widely known as ‘NRO’ which pardoned many known criminals and ordered to revive Pakistani claim against a fund lying in Swiss banks purported to be of ‘ill gotten’, and may belong to Asif Ali Zardari, the incumbent President of Pakistan. President enjoys immunity under the constitution (Art.248).
In order to do complete justice Supreme Court neither elaborated the status of his election whereby he ascended to throne, nor SC clarified the position of his oath and all those others who were elected under the umbrella of the same NRO. SC let the actions and judgements of Justice Dogar stay & let him retire peacefully and restricted their decree to the annulment of 3 November 2007 actions of Then President General Pervaiz Musharraf, the military dictator. SC hardly touched the case of Zafar Ali Shah (2000) in which it wrongly or rightly legalised the military coup of 12 October 1999. In fact, in 2000 case, SC granted a decree to amend the constitution which the Govt did not even plead but hand written insertion in the order say the rest.
Now that SC is insisting to implement its judgement. Govt is not interested. Chief Executive is defying openly and CJ is hiding behind his aides. The ring leader of lawyer ‘s struggle broke his silence and jumped in the ring when his party lured him to defend the Prime Minister. Both the lawyer ace and Chief Justice broke their vow not to hear & appear before each other, now the entertainment is of the whole nation. Barrister Aitzaz is a juggler of law, and as in Indian cinema the heroin is not complete unless she performs an item song as a dancing girl, similarly, in law its acting for the opposition. Defence lawyer in his swan song is performing as a Devil’s Advocate to perfect his art. He has many arrows in his basket. He has started irritating the bench and expressed lack of confidence on the capacity and capability of delivering justice. Along the line, he has raised a very important legal point whether contempt proceedings whereby a judge issues a show cause notice showing distrust on a person, can actually try him in the same proceedings in the meaning of article 10A of the Constitution of Pakistan 1973. That article was amended by 18th amendment which guarantees a due process and a fair trial in any civil and criminal proceedings. Now these are legal points and in an ordinary legal duel, a valid, justified and lawful to plead such arguments and Court may elaborate further to clarify the position. In the current proceedings legal questions have mixed up with the political.
We are in the middle of a lock horn position between judiciary and contemptuous executive and defence wishes to take the premier all the way. In a normal circumstances premier resigns if in a middle of a rock and hard place to avoid damage to normal state & governmental business, but we are experiencing an extra ordinary situation and no one seems to have a solution. Looking at the way things are developing, NRO though discarded but is carrying on with the set up which it fostered and reconciliation is the second name of ‘live and let live’ principle Asif Ali Zardari has introduced. All are enjoying the fruits and benefits of his alliance, hence keeping quiet. There is a storm in the Supreme Court , and media is chirping too but Parliament is quiet & opposition is numb on the subject.
I am not witnessing tens of thousands on the street protesting against this rogue attitude and due to its fall outs, delay and people’s back up behind political figures, it is paving for ‘compulsion’ than proactive ‘conviction’, hence adjournments seems a would be conclusion of Contempt case, Memogate, Mehrangate, OBL, and all other scandals and per se suo moto notices on political issues as Chief justice will not take the blame for something he will not gather support of his fraternity, masses and khaki’s.
Weaker Criminal justice system, lack of accountability spirit public or judicial and non interested Executive has turned court proceedings into a soup opera or a fifty fifty (comedy) show whereby justice is either lost somewhere or is denied during the process. Judicial activism without the will and power to implement and ability to secure finality has dented public confidence and will cost the nation dearly as Courts should not have assumed a responsibility which was actually a parliamentary domain unless it wanted to go all the way too. It raised false hopes and rang false alarms. Serious critics and law knowing & loving persons do not condone what’s happening in the ring of law.
Barrister Amjad Malik, is a chair of the Association of Pakistani Lawyers (UK)
26 March 2012