The implications of partial justice

(DAWN, Karachi) — ON the day after an unprecedentedly broad bench of Pakistan’s Supreme Court pronounced its death sentence against the National Reconciliation Ordinance (NRO), the government in Islamabad felt obliged to dispel rumours of a coup in the making. The perception that something extraordinary was afoot was reinforced when immigration authorities prevented the defence minister, Ahmed Mukhtar, from boarding a flight for an official visit to China.


The government rallied its thoughts and opted for defiance. Four officials lost their jobs over Mukhtar’s humiliation, and Prime Minister Yousuf Raza Gilani declared that President Asif Ali Zardari would ignore opposition demands to step down. He also made light of a reported arrest warrant for the interior minister, Rehman Malik.


A hurriedly convened session of the ruling Pakistan People’s Party’s (PPP) central executive resolved that, contrary to the advice of the recently reinstated Aitzaz Ahsan, there would be no ministerial resignations, and that ministers facing revived legal proceedings would have their day in court.


That’s not an unreasonable response in the circumstances, given that it explicitly incorporates acceptance of the Supreme Court’s verdict, and it’s perfectly valid to draw a distinction between corruption charges and proof of guilt. It is also gratifying that the temptation among hotheads to launch a crusade against the judiciary has thus far been resisted.


What’s harder to understand is why the government was apparently caught off-guard. After all, what were the chances of the court endorsing the NRO? That the government did not seek to legally counter the petitions challenging the ordinance suggested it was aware that the law introduced by former president Pervez Musharraf was effectively indefensible.


Could it be that the implications of the generally predictable verdict were not quite clear? After all, although accountability has frequently been a catchcry of successive administrations, it has hitherto been invoked exclusively against the opponents of the party or junta in power. Which helps to explain why accountability campaigns have tended to be invalidated in the popular perception by the stigma of politically motivated vindictiveness.


Last week’s judgement represents a change in this pattern that, on the face of it, deserves to be welcomed. The NRO wasn’t Musharraf’s first volte-face in this context. For all the pious talk about combating corruption, the politicians who pledged loyalty to his dictatorship were spared the indignity of financial probes. Musharraf can claim that the NRO was effectively forced upon him by external pressures as a means of facilitating Benazir Bhutto’s return to Pakistan, but no comparable excuse can be cited for the extrajudicial exoneration of the Q-branded Pakistan Muslim League’s (PML-Q) stalwarts.


When the NRO became law in October 2007, it entailed a sweeping amnesty for more than 8,000 politicians, bureaucrats and political workers who had been accused of pecuniary improprieties, murder or terrorist activities in the period between Zia-ul-Haq’s martial law and Musharraf’s coup. This meant a clean slate for, among many others,  the then Dubai-based PPP chairperson, her New York-based husband and a handful of their leading aides, as well as for the London-based Altaf Hussain and fellow leaders of the Muttahida Qaumi Movement.


Given the context, it is probable that some of these charges were tendentious while others were likely based on instances or well-grounded suspicion of wrongdoing. Ultimately it ought to be a matter for the courts. Unfortunately, Pakistan boasts a tradition of justice invariably delayed and frequently denied. The acquittal earlier this month of all 18 policemen accused of involvement in the murder of Murtaza Bhutto, who was gunned down by a police posse outside his Karachi residence while his sister was prime minister, could be seen as yet another instance of this trend.


It has long been the received wisdom that judges at all levels are prone to pressures and other inducements from the powers that be and other vested interests. There have always been honourable exceptions, too – the names of M.R. Kayani and Dorab Patel spring readily to mind. 


Iftikhar Mohammad Chaudhry’s refusal to kowtow to Musharraf’s coterie and the lawyers’ movement that twice led to his restoration as chief justice are widely seen as unprecedented developments that have   bolstered the rule of law. Back in July, the reconstituted Supreme Court struck down the emergency of November 3, 2007, albeit without specifically impugning its architect, and asked the government to refer the NRO to parliament.


The government baulked at this when it realised it didn’t have the numbers. But supposing parliament had ratified the ordinance, how would that have affected the legal decision on its validity? Following Chaudhry’s second restoration, one of his biggest supporters expressed the hope that “in the larger interest of justice” the chief justice “himself would not hear the case against the NRO”. In that instance, too, Aitzaz Ahsan’s well-intentioned advice went unheeded. And it is unfortunate but true that segments of last week’s short order are open to interpretation as indications of a personal agenda.


Judicial activism will lose its lustre unless it can also be seen, broadly if not universally, as judicious activism. Ideally, rather than an occasional blast from the past, accountability ought to be a perpetual process whereby everyone – be they in power or out of it, and in uniform or out it – is answerable for culpable wrongdoing. There have, inevitably, been calls from among PPP ranks for corruption cases against PML-N leaders to also be revived. Beyond the tit-for-tat politicking, the demand isn’t altogether unreasonable, given that both parties competed arduously for power and pelf during the superficially civilian interregnum of the 1990s.


Yet the khaki party that has been in power the longest seldom faces demands for accountability, although its conduct in any number of sphere has rarely been above reproach. The army’s invulnerability to accountability is unlikely to change in the foreseeable future.


Meanwhile, the federal government’s advocate Kamal Azfar wasn’t exactly wrong in pointing to the GHQ (the military general headquarters) and the CIA as sources of the biggest threats to democracy in Pakistan. But he would have come across as considerably more credible had he also shortlisted a third culprit in this context: the nation’s self-serving politicians.


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