The December 16, 2009 verdict of the Supreme Court of Pakistan declaring the National Reconciliation Order (NRO) null and void is essentially behind the latest judicial crisis. In its judgment, the Supreme Court had also called for reopening of all cases against the NRO beneficiaries, including a corruption case against President Asif Ali Zardari in a Swiss court. The government, however, refused to contact Swiss authorities for reopening the case, saying the president enjoyed constitutional protection. The refusal was seen by opposition parties and a section of lawyers as a violation of the SC order.
A deep mistrust was in fact created when President Zardari refused to restore the suspended judges of superior courts in accordance with the so-called “Murree declaration” he had signed with PML-N chief Nawaz Sharif on March 9, 2008 after the Parliamentary Elections which had voted the Musharraf-backed government out of power and given hope for a democratic transition.
Mr Zardari had agreed that the judges sacked by former president Pervez Musharraf during the Nov 3, 2007, emergency would be restored through an executive order within 30 days of the formation of the new federal government. The lawyers came out on the streets with the support of opposition parties, prominently the PML-N. The government was forced to restore the judges, including Chief Justice Iftikhar Chaudhry, as a result of a long march on March 15 last year.
Soon after restoration, the judiciary started taking many important cases, including petitions challenging the Nov 3, 2007, emergency.
On July 31 last year, the Supreme Court had declared the emergency as “illegal and unconstitutional”. The court gave the government 120 days to decide through parliament the fate of 37 ordinances, including the NRO, promulgated by General Musharraf after imposition of emergency or remained in force during the emergency period between Nov 3 and Dec 15, 2007. The NRO was issued by General Musharraf on October 5, 2007, as a result of a deal between the government and PPP chairperson Benazir Bhutto before her intended return from self-imposed exile.
It granted amnesty to politicians and bureaucrats against whom cases were registered between 1985 and October 12, 1999. President Zardari, Interior Minister Rehman Malik and a number of MQM leaders, including its chief Altaf Hussain, were among the NRO beneficiaries. However, the government had failed to provide legal cover to these ordinances which lapsed on Nov 28 last year. Although the government tried to get the NRO passed through parliament, it withdrew the decision after a strong opposition even by all its coalition partners. Later, a 17-judge SC bench headed by Chief Justice Iftikhar Chaudhry started hearing of the petitions challenging the NRO. But the government did not even defend the NRO in the court. This NRO verdict controversy was still on when Justice Khalilur Rehman Ramday retired last month and thus a vacancy was created.
President Zardari first returned the CJ’s summary regarding ad hoc appointment of Justice Ramday and later rejected another summary in which the chief justice had recommended elevation of the second senior-most judge of the Lahore High Court (LHC) Justice Saqib Nisar to the SC.
Instead, President Zardari issued notifications for elevation of LHC CJ Justice Khwaja Mohammad Sharif to the SC and appointment of Justice Saqib Nisar as the LHC CJ. The two judges, however, refused to take oath. Later on Saturday February 13, 2010, a three-member special SC bench suspended the president’s notifications.
For more detailed information and in depth-analysis on the judicial crisis please see an interview with the prominent jurist and leader of the Lawyer´s Movement Mr. Aitzaz Ahsan by the Asian Human Rights Commission on the detailed judgment of January 19, 2010 of Pakistan’s Supreme Court regarding the issue of the National Reconciliation Ordinance (NRO). And for more background analysis see chapter A Ray of Hope: The case of the Lawyer´s Movement in Pakistan in “Pakistan: Reality, Denial and the Complexity of its State”.
An article from Justice (retired) Fakhruddin G. Ibrahim, former judge of Supreme Court of Pakistan, forwarded by the Asian Human Rights Commission.
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