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Priceless rule of law
Barrister Amjad Malik
When we are hearing the reports of Superior Court declaring the appointment of NAB chief unconstitutional , it does not come as a surprise to many but fairly it was a matter of time. Accountability in principle should be held in accordance with the rules of natural justice across the board without a hint of doubt of ‘witch hunting’ or protecting the friendly corrupts. Prime Minister Gillani was warned to initiate efforts removing the deadlock between superior judiciary and the executive and hence the President to reverse his move, and appoint the head of accountability in accordance with the meaningful consultation as was outlined in Al-Jehad Trust case, as it has serious ramifications over the future of civil dispensation which is marred with corruption allegations and scandals., but who listens. Hence protests of ruling party against the judgement of 10 March is unfortunate and uncalled for.
Current appointment was unacceptable and Govt must appoint NAB chair in line with the Ordinance (Clause 6) post 18th amendment law, Charter of Democracy spirit, and actual consultation with the opposition and if possible with the consent of the Chief justice of Pakistan as per the case law (Asfand Yare Wali vs Federation (PLD 2001 SC 607) , unless and until new accountability law replaces the NAB ordinance.
Justice Deedar Hussain Shah may be a good individual but may be considered partisan due to his past election to the political positions and lack of actual consultation will scar the whole accountability process and will give an impression that he is appointed to achieve an end, and not to ensure the objective of true, transparent and robust accountability across the board. It’s time for the Pakistani premier to make a bold decision to implement the order of the SC on NRO to discourage corruption in any form or shape in the society where Court has already declared NRO void ab initio being ultra vires & violative of Articles 4, 8, 12, 13, 25, 62(f), 63(1)(h), 63(1)(p), 89, 175, 227 of the Constitution, and deemed it non est from the day of its promulgation i.e. 5th October 2007.
The ruling elite and political parties as a group must act as a an ‘accountability process’ which is robust not relaxed and it is not an executive tool to settle score with the opposition. An independent autonomous non-political body duly protected by a legislation with full financial autonomy, which carries out investigation in a fair and transparent manner ensuring the public that corrupt public officials and practices are duly detected, investigated and tried in Pakistan is a need of the hour.
Powers of the new accountability process should include all of the public & political office- holders, including that of military and judiciary retaining the ‘watchdog’ characteristic. This suggested accountability process may ensure rule of law, fairness, and a transparent accountability of all, which is long awaited in Pakistan. Political solution in the homeland must remain an option where Parliament considers a true reconciliation and new law to curb corrupt practices at public office and a separate ‘truth and reconciliation commission’ to filter all backlog of cases addressing the anxiety of public and grievances of the accused, where some cases are pending for over a decade and some of whom have already served sentence for years. New commission on corruption could have ensured unbiased, impartial and honest assessment of corruption cases irrespective of the accused status ensuring public confidence on the system, without aiding the govt to settle scores with their political foes. In this context Justice Deedar Hussain Shah’s appointment is a reversal to those efforts than a development in the right direction. Pakistan’s current situation, economic meltdown and recent wave of violent extremism and terrorism calls for a national drive to counter the challenge. At present we are failing in curbing extremism mindset and attacks on places of worship, funeral prayers, intelligence outfits and above all Minority Minister are but a fine example of a clear divide.
I have also read reports of ‘govt to open three fronts against SC’ which is ringing alarm bells. It seems Govt has not learnt anything from the 9 years struggle for rule of law against General Musharraf and society's resilience not to accept 3 Nov 2007 emergency acts. 9th March is a symbolic day of struggle of Pakistani society with media, lawyers and democratic forces marching towards independence of judiciary against a dictator and the Chief Justice of Pakistan Iftikhar Mohammed Chaudhary made it memorable by refusing to resign from his position on principles. Right thinking expect that the same struggle will pave way for rule of law, justice and accountability in the country which aides the democracy, by reviving the respect for one man one vote on the very principle this country was made of course with good governance, merit and fairness. NRO is an antidote of that struggle and soon civil autocrats realise that the better it is for democracy in Pakistan as their parties are waiting for democracies in their ranks too which they can delay but can't deny forever. If further reference can be filed against Chief Justice, the society with media, lawyers and democratic forces may fight again but these NRO parties and its puppet leadership who have let down badly may not survive in the struggle of a common man, because the picture is not finished yet (picture abhi baaqi hey merey dost).
Barrister Amjad Malik is a Chair of the Association of Pakistani lawyers in UK
11 March 2011
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