The Pakistani Spectator

Laws which do not share and reflect the public sense of justice and fairness are doomed to fail. In no uncertain terms, the NRO was widely seen as a glaring example of such laws. It was viewed as an appalling act of a falling administration which desperately wanted to prolong its political life by any means possible. The NRO was believed to be a Machiavellian move. It was orchestrated by those who felt compelled to pave the way for the entry of a few more into their folds, through back-door wheeling and dealing.

The Pakistani public still has a fresh memory of the way the NRO deal cutting was executed, completely shrouded in secrecy, and without a shred of public discourse or input. The people of Pakistan fully understood the NRO ramifications and resented the way they were kept in the dark as if they had nothing to do with the formation of a new government, and as if they were born to be ruled by a privileged elite known for striking deals behind closed doors, on foreign soils, with the acquiesce of their foreign masters. The rapid unfolding of recent events shows that the former ruling junta could not have been more incorrect in gauging public sentiment. It apparently failed to learn from what the Pakistani civil society exhibited to the whole world, during their struggle for the restoration of the deposed judiciary.

Their struggle has all the hallmarks of a maturing civil society, marked by a thoughtful, peaceful, non-violent and democratic rendition of thoughts and actions against injustices and suppression. It is certainly not a stretch to think that the newly found judicial courage is deeply inspired and strengthened by the people’s resolve to fight for justice. Their quest for justice was unwavering, since justice has eluded them for so long. By declaring the NRO void ab initio, the Supreme Court wiped it out as if it had never existed. The NRO was seen as another black mark on the political face of a country whose populace has been kept out of power for long. Time and again, such manipulation of the Pakistani masses was done through the tacit involvement of the higher judiciary, which invariably relied on pseudo jurisprudence to strengthen the hands of their partners in crime. But this time around, the people were in an entirely different mood, and the higher judiciary took full notice of it.

After all, the present higher judiciary is one of the beneficiaries of the civil society’s long struggle for a democratic, egalitarian, and forward looking Pakistan. The Supreme Court, claiming the authority and capacity as the final arbiter on constitutional issues, finally hammered the last nail into the NRO coffin. After a long history of being weak and compliant, the current Supreme Court, under the stewardship of Chief Justice Iftikhar Chaudhry, appeared assertive and claimed its rightful place forcefully and unapologetically as it went ahead with the hearings to determine the fate of the NRO. The Supreme Court’s current decision on the legality of NRO is significant and far-reaching both in terms of its effect on constitutional jurisprudence and in political arena. This decision undoubtedly signifies a turning point in Pakistan judicial history.

Aside from the long term constitutional implications of the decision, it is abundantly clear that President Zardari’s political fate at the moment is also at stake. Amongst many others, Zardari stands out as the biggest fish, who has a lot to be concerned about. Without the amnesty which he received through the creation of the NRO, he could not have reached the pedestal where he now stands. It is this position as President that he grabbed on the clutches of the NRO, without which no such magical access was possible. With such a backdrop, the debate about the concept and application of presidential immunity is one important, but it is not the only core issue. The most urgent issue deals with Zardari’s eligibility to continue to hold the office. In this context, the most immediate question is whether he can continue to hold onto the office of President, after the Supreme Court declared the NRO void ab initio. The manner in which the immunity question was raised by Zardari’s legal team appears to be a smoke screen meant to hide the larger and most urgent question pertaining to Zardari’s current eligibility to hold office, after the NRO’s death as a void ab initio act. In law, the term “void” means something of no effect.

It could be an action, document, transaction, and so forth. Black’s Law Dictionary defines the term” void” as null, ineffectual, nugatory, having no legal force or binding effect, unable to support the purpose for which it was intended. Under this definition, if the NRO has no legal force, and consequently if it cannot support the purpose for which it was intended, then the question is on what legal and constitutional bases, can Zardari and others in the same boat hold their current public office? It is equally important to note that the Court did not simply declare the NRO void. In fact, it went out further and made it “Void ab initio”. In simple words, the term “voids ab initio” means that the action, document, or transaction in question is null and void from the beginning. Therefore, if the NRO has no validity from the time of its inception, then it is natural to conclude that it cannot confer any legal rights upon anyone who used it to his or her benefit.

With regard to issues revolving around the nature and scope of presidential immunity, there seem to be a wide consensus amongst legal scholars that presidential immunity does not shield a President for his or her private, unofficial actions from civil or criminal cases. Even certain official acts are not completely shielded from legal scrutiny. A plethora of additional questions arise from the base of this complex issue, for which no easy answers are available. Consequently, it becomes pivotal for both the legal fraternity and the judiciary to address all pertinent questions with utmost honesty, efficiency, and diligence. It is time for all to pursue justice, not vengeance. The nation cannot afford to face further setbacks.

By Saleem Rizvi in The Frontier Post