“The past three years in the history of Pakistan have been momentous and can be accorded the same historical significance as the events of 1947… and those of 1971 … It is in this backdrop that these petitions have been heard and decided.” — Justice Jawwad S. Khawaja (NRO judgment)
THE Supreme Court judgment dated Dec 16, 2009 and Nov 25, 2011 in the Dr Mubashir Hasan & Others vs Federation of Pakistan & Others (NRO judgment) case has captured not only the public imagination but is also at the heart of the judicial conflict between the executive/presidency and the Supreme Court.
But why has this single case pertaining to alleged high-level corruption become so important? Is it simply because of the central presence of President Zardari in the judgment, and the consequences for his presidency and the PPP government if the NRO judgment is fully implemented?
In fact, this 'apparent answer' is misleading because the implementation of the NRO judgment will not lead to the removal of Zardari or his PPP government as the NRO judgment doesn't contemplate such a removal. Also, can't it simply be about the alleged millions of dollars? Because Zardari, like Thaksin, the former Thai prime minister, is willing to bet, and lose, millions of dollars in his quest for absolute political power? The mystery of the enduring centrality of the NRO judgment remains unexplained.
The importance of the National Reconciliation Ordinance (NRO), the NRO case and the NRO judgment lies in the fact that it is not simply about the law but also about the unfolding of history and competing visions of democratic constitutionalism which have emerged in the Pakistani political sphere since 2007.
The year, 2007, was like neither 1999 nor 2002. The dynamics of Pakistani politics demanded that some kind of a democratic transition took place that broke the absolute hold of the army-dominated political system. Musharraf knew this and the Americans wanted it.
Before the removal of the chief justice on March 9, 2007, Musharraf was in the driving seat to structure such a democratic transition and proposed the 'force model of democratic transition'. This 'force model' proposed the sharing of power between the army and the PPP but with Musharraf dominating. Before March 9, 2007, the PML-N was an irritant and the Supreme Court was not relevant because it posed no real threat.
After March 9, 2007, the judicial defiance of the chief justice and the superior court judges changed everything politically. The superior judiciary emerged as a judico-politico player in Pakistani politics and proposed the alternative 'law model of democratic transition'.
This 'law model' proposed the dismantling of the Musharraf regime through the courts and a democratic transition dominated by law and not political compromise. The PML-N was reborn and jumped onto the judicial band wagon. Benazir Bhutto was happy at the prospect of a weakened Musharraf but worried about the emergence of judico-politico power. Musharraf, of course, saw his political death.
It is in these circumstances that the NRO was negotiated between Musharraf and the PPP. The NRO proposed a third model i.e. the 'consent model of democratic transition'. This was 'individuals' reconciliation' as rightly recognised in the NRO judgment but the purpose of this consent model was threefold: a politically negotiated transfer of power to the PPP; keeping Musharraf politically alive; and restraining the growth of judico-politico power. This 'consent model' had the obvious effect: it offended the judiciary that saw it as an obstacle, and a betrayal of its own 'law model of democratic transition'.
Nov 3, 2007's emergency was a last failed attempt to reintroduce the 'force model of democratic transition' by Musharraf. And by not restoring the judges immediately after the resignation of Musharraf, the PPP government tried to dismantle the 'law model of democratic transition' and reinforced the 'consent model' minus Musharraf.
The purpose was obvious: dismantle judico-political power as an alternative and make politics and compromise, not the law, central to the democratic future of Pakistan. Justice Dogar guaranteed the judicial-executive illegal reconciliation; Chief Justice Iftikhar Chaudhry, and his fellow judges, sought to dismantle this illegal reconciliation.
This context of the battle between competing political visions of the 'law model' and the 'consent model', and the emergence of judico-politico power is the key to understanding the Supreme Court's condemnation of the NRO, and of the alleged corruption of the PPP in the NRO judgment.
With the PPP government in power and the presidency secured, the PPP government decided not to defend the NRO with the hope that the judiciary would simply forget about its 'law model of democratic transition'. But the NRO judgment provided an opportunity to the Supreme Court to reinforce the juridical-political reality that the 'consent model' would need to compete with the 'law model' in the democratic transition taking place in Pakistan.
It is precisely in this context of the battle of competing political visions that the Supreme Court is so rigorously pursuing the implementation of the NRO judgment.
Like the NRO deal and the non-restoration of judges, non-implementation of the NRO judgment is seen by the judiciary as a threat to it's judico-politico power and a threat to its desire to shape Pakistani democratic constitutionalism through its 'law model'.
Which model politically suits Pakistan? The above three models of consent, law and force, proposed by the politicians, the judiciary and the army, provide solutions to the three major problems facing Pakistan i.e. lack of compromise, lawlessness and violent anarchy. But for this to happen the political, judicial and military elites must understand that their respective visions can only build a strong democratic constitutional Pakistan if all three models shape the country.
The problem arises when any one of these models seeks to dominate, and dismantle, the others.
The writer is a lawyer.