Pakistan Supreme Court's anti-Musharraf
verdict shields President Zardari

By Abdus Sattar Ghazali

Since the days of Chief Justice Mohammad Munir, Pakistan's Supreme Court has taken refuge in the "law of necessity" to provide legality to the military dictators, Field Marshal Ayub Khan, General Ziaul Haq and General Musharraf. Not surprisingly the Supreme Court declared the martial law of General Yahya Khan in 1973. However General Yahya was not in power at the time of verdict as he had handed over power to Zulfiqar Ali Bhutto in December 1971 after the debacle of East Pakistan. On July 31, 2009, the Supreme Court shielded the incumbent President Asif Ali Zardari under the so called principle of the welfare of the people.

In a well crafted unanimous verdict, the 14-judges full bench of Pakistan's Supreme Court on Friday (July 31, 2009) declared illegal the emergency imposed in November 2007 by the then President General Parvez Musharraf but failed to invalidate 37 Ordinances issued by him during the emergency period or validated under emergency.

However, the Supreme Court invalidated ordinances relating to the higher judiciary promulgated during the emergency , including the Constitution (Amendment) Order, 2007, the Constitution (Second Amendment) Order, 2007, the Islamabad High Court (Establishment) Order 2007, the High Court Judges (Pensionary Benefits) Order, 2007 and the Supreme Court Judges (Pensionary Benefits) Order, 2007.

Thus while the entire judicial edifice created in the wake of November 3-December 15, 2007 emergency has been dismantled, the 2008 general elections and the political order emanating from these has been endorsed as constitutional, leaving President Zardari and the Parliament as well as financial and administrative actions taken during the unconstitutional emergency intact.

Tellingly some 110 judges of the apex court and the high courts have been sacked due to the judgment but the rulings issued by such illegal judges remain valid.

The Supreme Court has cited "the principle of the welfare of the people as the ultimate law" to provide protection to the system which practically came into existence under the controversial National Reconciliation Ordinance of October 2007.

In a shocking contradictory stance, the verdict declared the appointment of Justice Abdul Hameed Dogar as Chief Justice of Pakistan, in November 2007, unconstitutional and invalid but validated  "all administrative or financial acts performed by him or of any oath made before him" as the Chief Justice.

It is not difficult to guess why the Supreme Court, headed by Chief Justice Iftikhar Chaudhy, has taken such a contradictory step and validated Chief Justice Dogar's actions?  The answer is very simple. It dare not invalidate the oath of office of President Asif Ali Zardari administered by Chief Justice Dogar.

The Supreme Court verdict also shielded President Zardari by declining to rule on the controversial law, the NRO granted amnesty to politicians, bureaucrats and political workers who were accused of corruption, embezzlement, money-laundering, murder and terrorism. Not surprisingly, the News carried the story of NRO promulgation by General Musharraf on October 6, 2007 with the telling headline: "Corrupt politicians given a clean slate."

The NRO states:

"Notwithstanding anything to the contrary in sub-section( 1), the Federal Government or a Provincial Government may, before the judgment is pronounced by a trial court, withdraw from the prosecution of any person including an absconding accused who is found to be falsely involved for political reasons or through political victimization in any case initiated between 1st day of January, 1986 to 12th day of October, 1999 and upon such withdrawal clause (a) and clause (b) of sub-section (1) shall apply."

Interestingly, among the others who benefited from the NRO are President Zardari, incumbent Interior Minister Rehman Malik, Maulana Fazlur Rehman of the Jamiat Ulema-e-Islam that is a junior partner in the ruling federal coalition, former prime minister Zafarullah Khan Jamali and a host of retired army generals. Others who benefited from the NRO include: President Zardari's father Hakim Ali Zardari, MQM leader Altaf Hussain, former Interior Minister Aftab Sherpao and current Pakistan's ambassador to US, Hussain Haqqani.

President Zardari is one of the main beneficiary of the NRO. On 5 March 2008, Zardari was cleared of five corruption charges as part of a court ruling which "abolished the cases against all public office holders", including corruption and illegal use of property under NRO. He had another trial on the remaining charges on 14 April 2008, when he was cleared under the same NRO. 

It may be recalled that Chief Justice Iftikhar Muhmmad Chaudhry had revoked the ordinance but he was dismissed after Musharraf declared an emergency Nov 3, 2007. His successor, Abdul Hameed Dogar revived the NRO in February 2008.

The Supreme Court verdict against General Musharraf came seven weeks after Chief Justice Iftikhar Chaudhry met at his office the Special Envoy to Pakistan and Afghanistan, Richard Holbrook. It was appalling to the nation. Explaining the unusual meeting that sparked many speculations, Dr Faqir Hussain, Registrar of the Supreme Court, pointed out that the meeting took place at the request of Mr. Holbrook and at the advice of Foreign Office. One wonders since when the CJP has started accepting the advices of the FO? "Matters relating to judicial reforms as per national judicial policy and the whole judicial structure of Pakistan were discussed," Dr Hussain said.

According to Dawn, the meeting came at a time when Pakistani judiciary is seized with litigations that directly involved interests of the United States. A particular case of concern to the US is that of the missing persons in which intelligence agencies have been accused of either abducting people on suspicion of terrorism or handing them over to the United States. The case of Dr Aafia Siddiqui, who was reportedly abducted from Pakistan and is now in US detention, is also pending in courts. The Supreme Court spokesman denied that the issue of missing persons came up in the meeting.

Interestingly, immediately after his meeting with the US Envoy, the chief justice went to the presidency to attend the oath-taking ceremony of newly appointed Federal Shariat Court Chief Justice Agha Mohammad Rafique. There he had a one-to-one meeting with President Asif Zardari. It was for the first time since his restoration that the chief justice visited the presidency and met President Zardari.

Reporting about Zardari-Iftekhar meeting, the Dawn pointed out that "one case pending before the Supreme Court and that directly affects President Zardari relates to the controversial National Reconciliation Ordinance (NRO) through which former President General Pervez Musharraf allowed the quashing of corruption charges against PPP leaders, including President Zardari."

The fate of Musharraf after the Supreme Court verdict

The former President General Musharraf was abroad when the Supreme Court verdict came. The president's spokesman Farhatullah Babar has advised Musharraf that it would be better for him to stay in London. Babar said that Musharraf's return to Pakistan might cause problems for both the government and for Musharraf. He denied that Musharraf had not been pressured to leave the country.

Interestingly, Saudi Arabia's ambassador to Pakistan has been quoted as saying that Saudi Arabia will consider giving political asylum to Pervez Musharraf if he requests it. What an irony if Musharraf takes asylum in Saudi Arabia. One he sent his rivals, former Prime Minister Nawaz Sharif and his family into exile in Saudi Arabia.

In another alarming development for Musharraf, an application has been filed in Karachi praying to the court to make him respondent in a constitutional petition pertaining to incidents of May 12, 2007, which claimed the lives of 55 persons in Karachi during a whole day of killing and arson attacks. The petitioner, Syed Muhammad Iqbal Kazmi, in his peition maintained that the killings on the day were on the orders of the former dictator and thus he should be made a respondent in the petition. The petition is already fixed for hearing on Aug 17.

Meanwhile, Attorney General Latif Khosa says former President Musharraf could be tried by simple majority resolution of Parliament.

Abdus Sattar Ghazali, author of Islamic Pakistan: Illusions Reality, is the Executive Editor of the online magazine American Muslim Perspective: www.amperspective. com email: asghazali@gmail. com