KARACHI, 27 April — With its judgment on the law of accountability, declaring some of its provisions as ultra vires, the Supreme Court has again vindicated itself as the upholder of the rule of law. This is important against the perspective of the dubious role of the higher judiciary in the country’s political history, particularly in the aftermath of military intervention.
At the same time, the government of Chief Executive Gen. Pervez Musharraf is content with the fact that the process of accountability, a major aim of the intervention of October 1999, has essentially been protected, if only with some modifications. The Supreme Court has held that the law was promulgated competently. And the judgment will have no affect on the cases already tried and decided.
A number of jurists have held that the Supreme Court had decided the case within the framework of its own judgment which had validated the military takeover and had permitted the present regime to bring in necessary legislations for completing its agenda. By virtue of that judgment, all the laws promulgated by the present government had to be tested on the touchstone of fundamental rights provided by the constitution. In that sense, the apex court has decided the case within the boundaries fixed by its own judgment.
In its judgment, the Supreme Court issued guidelines to the government to amend the National Accountability Bureau (NAB) Ordinance, preferably within two months, for bringing the accountability process under the existing judicial system. It reduced the maximum period of remand from 90 days to 15 days and directed that the accused should be produced in the accountability court within 15 days of his arrest.
But expectations of political parties that the burden of proof would be reversed and would go to the prosecution were not fulfilled. Another issue which has particular relevance to people like Benazir Bhutto, the former prime minister against whom a number of cases of corruption are under investigation, relates to the provision for conviction in absentia.
It has officially been stated that the government would bring amendments within the period of two months given by the Supreme Court and that the judgment would be implemented “in its true letter and spirit”. NAB prosecutor general also asserted that the accountability process would now be carried out with “full speed” because the decision, as he saw it, had dispelled all the doubts in the minds of general public. He said the cases pending with the accountability courts will not be affected.
As The Nation said in its editorial, the Supreme Court decision tends to clip the wings of a fearsome institution and may hamper it in its efforts to ensure ruthless, across-the-board accountability. It said: “This is not such a great loss as it might seem, considering that its performance has been less impressive than its advance publicity”. The newspaper felt that the Supreme Court has made a admirable attempt to temper the excesses of the NAB Ordinance. However, “all said and done, the government is a military one and there are still political detenus who have been held for a year and a half without charges”.
As would be expected, the judgment has attracted both commendation and criticism from lawyers and politicians. Former chairperson of the Human Rights Commission of Pakistan, Asma Jehangir said that in real terms the judgment would not have much an effect because, in her view, the existence of the NAB itself was illegal and against the constitution.
She thought that a little relief was not the solution. Many lawyers saw the judgment as positive but were unwilling to declare it in harmony with the constitution.
Many politicians who had opposed the law said their stand had been upheld with the removal of some ‘draconian’ provisions. But they argued that the law was vindictive and discriminatory since only politicians had remained its prime target and it did not extend to superior judiciary and the military.
In many ways, the judgment reflects the present pragmatic mode of the Supreme Court. In this respect, the judgment earlier this month to set aside the conviction of Benazir Bhutto and her husband Asif Zardari in a corruption case had raised the credibility of the Supreme Court in the eyes of many observers. Considerable comment was also generated by the foreword of Chief Justice Irshad Hasan Khan to the Supreme Court’s annual report released a few days ago. He served notice on the government that its tenure is time bound and that a general election must be held before October next year. This reaffirmation of the Supreme Court’s conditional validation of the October 1999 military takeover was meant to reassure the nation that the present dispensation is of a transient nature. Daily Dawn said in an editorial: “It is amazing that in a country founded by a democrat and achieved through a democratic and constitutional struggle, a chief justice should be forced to reaffirm Pakistan’s democratic destiny more than half a century after its birth.”
