ISLAMABAD: As the saga of the National Reconciliation Ordinance (NRO) beneficiaries gains momentum, the government has prepared a ‘separate list’ of beneficiaries of the scrapped law who are still working in different government departments, The Express Tribune has learnt.
Last week, Prime Minister Yousaf Raza Gilani had directed the Establishment Division to compile a list of NRO beneficiaries holding public office which has been furnished to him, establishment division sources said.
The list carries the names of the more than 70 beneficiaries still working in departments including the National Database Registration Authority (Nadra), the Federal Investigation Agency (FIA), Oil and Gas Development Company Ltd (OGDCL) and different ministries in the federal government.
Another list that carries the names of leading politicians and technocrats was made public last year by the then state minister of law and justice Afzal Sandhu. The list carried 248 names out of over 8,000 beneficiaries of a law enacted by the former president General Pervez Musharraf in 2007.
The Supreme Court later struck down the legislation declaring it “void ab initio” – that is, the law never legally existed. The court had ordered the government to reopen the cases against all accused, including President Zardari and many top government functionaries.
The government will be presenting the list of major beneficiaries of the NRO in the Supreme Court tomorrow (Monday).
The name of President Asif Ali Zardari, who was allegedly involved in eight different cases, has been deleted from the other list that contains some 270 names that the government will submit with its summary on the implementation of the NRO verdict. The government insists that the president has immunity under the Constitution and no case against him can be opened till he holds office of the head of state.
The name of Interior Minister Rehman Malik, who was accused of illegal detention of complainants and illegal gratification, is on top of the list.
Establishment secretary Ismail Qureshi confirmed to The Express Tribune that the list carries some 270 serving officials, including some 15 top officials of ruling political groupings.
NAB director general operations, Kausar Malik, also confirmed that one list already has been put up in the Supreme Court. However, a fresh list of NRO beneficiaries will be presented on Monday, he added.
Meanwhile, the former state law minister was curious about the reported change in the list of NRO beneficiaries compared to the list he had made public. “I won’t comment on that but I believe in the list which I made public on November 2009 carrying 8,041 names of NRO beneficiaries,” he said.
While the Establishment Division list further revealed the names of Defence Minister Ahmad Mukhtar, parliamentary leader of the MQM in the National Assembly Dr Farooq Sattar, Minister for Ports and Shipping Babar Ghauri, Sindh Provisional Minister Shoaib Bokhari, Minister of State for Housing Tariq Anis, Sindh Minister for Local Bodies Agha Siraj Durani, Ambassador to the US Hussain Haqani, Secretary President House Salman Farooqi, Assistant Director FIA Sajjad Haider, Inspector FIA Moeen Ashraf, Assistant Director FIA Ishrat Ali, Assistant Director FIA, Noor Muhammad Kaka, Additional Director FIA Ali Asghar Kaka, Assistant Manager GHQ, Habibullah Tasnim, Pir Mukaram-ul-Haq and many other top officials.
Published in The Express Tribune, September 26th, 2010.
===========
ISLAMABAD: The list of officers who benefited from the National Reconciliation Order 2007 is nearing completion and reportedly contains numerous politicians and bureaucrats holding senior positions in the government.
Express 24/7 reports that Pakistan’s ambassador to Washington, Hussain Haqqani is in the list of NRO beneficiaries that is being prepared by the Establishment Division. Another notable name on the list is that of Salman Farooqi, who is serving as the Secretary General to the Presidency.
Ambassador to Iran MB Abbasi and former DG Intelligence Bureau, retired Brigadier Imtiaz Ahmad, have also made the list. Another beneficiary of note is Ahmad Sadiq, the former personal secretary to the then prime minister Benazir Bhutto.
Prime minister Yousaf Raza Gilani had directed the Establishment Division to prepare the list within 48 hours following a contempt notice issued by the Supreme Court on the appointment of Adnan Khwaja, an NRO beneficiary who was appointed as chairman of OGDC.
A 17-member larger bench of the Supreme Court had unanimously struck down the NRO on December 16 2009. However, the Supreme Court has been dissatisfied with the government’s inaction to implement the NRO verdict.
===============
EDITORIAL: A possible showdown
Prime Minister Gilani has stood his ground on the issue of reopening the Swiss cases. He has reiterated that parliament is supreme and President Zardari has immunity under the constitution. The president is part of parliament and the supreme commander of the armed forces.
Article 248 (2) of the constitution clearly says: “No criminal proceedings whatsoever shall be instituted or continued against the President … in any court during his term of office.”
But PML-N chief Nawaz Sharif, on the other hand, is of the view that the Supreme Court (SC) will be the one to decide whether the president enjoys immunity. It seems that Mian sahib is taking sides with the judiciary for political gains. It should not be forgotten that today’s ‘champion’ of the judiciary was the same Nawaz Sharif whose last stint in power yielded an attack on the SC by his supporters in 1997.
It is time that we take stock of the current situation and the consequences that could ensue. The National Reconciliation Ordinance (NRO) was a negotiated deal and a concession by General Musharraf to Benazir Bhutto and the PPP in order to pave the way for her to end her self-imposed exile and re-enter politics. Musharraf wanted a political lifeline after his popularity took a sharp turn downwards. Though the PML-N was not a direct beneficiary of the NRO, in the wake of the ordinance, the Sharifs were also able to reinsert themselves in the political process. Without the NRO and the re-entry of late Ms Bhutto into Pakistani politics, the Sharif brothers too would have been left high and dry in exile. The NRO’s controversial weight has largely been visited on the politicians despite the fact that out of the 8,041 beneficiaries, only 34 are politicians.
Chief Justice (CJ) Iftikhar Chaudhry’s remarks that
“the prime minister is a wise man, he must know the consequences of the non-implementation of the NRO verdict”can be construed in a negative sense. There is a risk that the institutions of the state are transgressing their limits as laid down in the constitution and thus the respected CJ’s words may make the SC controversial and bring into question the impartiality of the apex court. Judges have to be cautious in their utterances to avoid the risk of lowering the courts’ respect and dignity.
Prime Minister Gilani has now asked the NRO beneficiaries to step down voluntarily, but this should have been done earlier given the logical implications after the NRO was struck down by the SC. On the other hand, the ruling party seems to have decided to gird up its loins and defend its position vis-à-vis President Zardari. It is extremely unfortunate that in the middle of immense crises, we have come to this pass. Presumably, the summary sent by the law ministry to the prime minister has suggested that the government should not write a letter to the Swiss authorities, which is what the SC has asked them to do. A bare reading of the overall situation seems to suggest that it may be difficult to reopen the Swiss cases and satisfy the court. If the government does send the letter to the Swiss authorities, what would happen if the Swiss refuse to entertain its request?
A wiser course of action would be for the SC to review its directive regarding the reopening of Swiss cases, as it would lower the respect of our country if a sitting president is put in an embarrassing position before the world. *
================
Sunday, September 26, 2010
ANALYSIS: Democracy at the brink? Dr Hasan Askari Rizvi
Democracy is a joint exercise of different state institutions and the political class with an emphasis on constitutionalism, the rule of law and respect for democratic principles. If one institution develops an aura of self-righteousness and adopts a unilateral approach of setting everything right, the political process will be stifled
Democracy is a delicate system of governance that can easily be destroyed if its spirit is violated and competing political players are strongly motivated by partisan interests, immediate gains or personal ego, or if they engage in a self-serving interpretation of democratic principles and the constitution.
Democracy calls for institutional autonomy and balance. Different state institutions need to function within their defined constitutional and legal parameters. They need to respect each other’s autonomous status and no state institution should endeavour to overwhelm another institution.
Out of the major state institutions, parliament has an edge over other institutions because of its representative character and its position as the supreme legislative body. However, it exercises power within the limits set out by the constitution and the laws it frames.
Such a democratic system faces challenges from two major sources. First, if an institution of the state stretches its domain of authority at the expense of other institutions or if one institution attempts to overwhelm other institutions. Second, a fragmented and divided political class whose commitment to democracy and constitutionalism is nominal and self-serving, i.e. as long as it serves partisan interests. Democracy cannot become viable if the major players are prepared to adopt or encourage non-democratic and unconstitutional methods to pull down the elected government of their adversaries.
In the past, the military dominated other institutions of the state. Four military governments engaged in constitutional and political engineering to hold on to power and advance their professional and corporate interests. This stifled the democratic process and undermined the autonomous growth of civilian institutions and processes.
Pakistan returned to democracy for the fourth time in March 2008 when elected governments were installed at the federal and provincial levels after the February 2008 general elections. Thirty months later, even an optimist finds it difficult to suggest that democracy has become sustainable. Democracy is under strong pressure from the superior judiciary in the wake of a possible executive-judiciary confrontation, sections of the political class that want to get rid of the government by all possible means, and the government’s own poor performance.
All sections of the political class, including the leaders in power, are more enthusiastic about imposing the strictest standards of morality, accountability and democracy on each other without bothering to consider if their individual disposition conforms to the desired criteria.
Most opposition leaders want the Supreme Court (SC) to knock out President Asif Ali Zardari or the PPP-led federal government either directly or by asking the army to send tanks and troops to do this, because they think that the federal government cannot be removed through parliament. They have the mistaken notion of the judiciary and the army fulfilling their partisan agenda.
However, parliamentarians and other leaders do not want anybody to raise any issue about their overall performance or their financial assets. The recent publication of a comparative study of their assets by a non-governmental organisation, the Pakistan Institute of Legislative Development and Transparency (PILDAT), has perturbed most parliamentarians irrespective of party affiliations. They have described this as a conspiracy to malign them and democracy. The data used for the study is taken from the annual statements of assets that parliamentarians submit to the election commission. This information is available in the public domain. Still, they do not want anyone to analyse it and release their findings to the media.
An over-active judiciary may facilitate the opposition’s objective of keeping the government under pressure or its removal altogether. However, the political class is unable to realise the long-term implications of this for the future of democracy and the political leaders and parties.
Past experience suggests that the removal of governments by non-elected institutions like the military did not help democracy and accountability of the ruler; nor did it improve governance. It placed restrictions on the role of political leaders except when they agreed to be co-opted by the ruling generals. Now, another non-elected institution, the judiciary, is mounting pressure, which, if not handled carefully, can lead to a confrontation among the state institutions, causing acute political instability.
The threat of confrontation between the PPP-led federal government and the superior judiciary is going to be extremely destabilising and will be detrimental to the future of democracy. The major opposition parties are expected to support the SC in this confrontation. Unlike November1997, when Nawaz Sharif confronted the SC to save his government, he is expected to support the SC this time for punitive action against the present prime minister and/or the president.
Democracy is a joint exercise of different state institutions and the political class with an emphasis on constitutionalism, the rule of law and respect for democratic principles in letter and spirit. If one institution develops an aura of self-righteousness and adopts a unilateral approach of setting everything right, the political process will be stifled.
All the major cases currently before the superior judiciary involve specific articles of the constitution. Some of the articles like immunity to the president from initiating or continuing with any criminal proceedings (Article 248(2)) are so clear-cut one wonders why this matter should stay unresolved for such a long time. Similarly, the constitution recognises the primacy of parliament for constitutional amendments (Article 239(5), (6)), and a party office is not yet labelled as an office of profit. In the past, the heads of state and government have held the top party slot without triggering appeal to the superior judiciary. Such political issues should be settled in parliament by legislation for the separation of the two offices.
These controversies have brought Pakistan’s current democracy to the brink of collapse. The fact remains that if the present state of affairs is not changed, Pakistan may become a non-functional and non-effective state. What will the military do, whose stakes are very high in political stability, because it is addressing the triangular challenge of terrorism, India’s security pressure, and rescue and relief work for the flood-hit people? It may be hesitant to get involved in another task. However, if the situation gets out of hand with the pro and anti-government elements confronting each other, the military top brass may find it difficult to stay indifferent. Alternatively, the superior judiciary may seek the military’s cooperation.
Unless the present drift between the superior judiciary and the executive is moderated, Pakistan’s capacity to cope with its acute economic problems, the threat of terrorism and the rehabilitation of the flood-hit people will be greatly undermined.
The writer is a political and defence analyst
==========
Bureaucracy in the eye of the storm
Two lists of NRO beneficiaries to be presented
ISLAMABAD: Not only some ministers but also the serving bureaucrats, who profited from the now-scrapped National Reconciliation Ordinance (NRO), might face temporary suspension till revived cases against them are decided by courts, according to NAB rules.
The government is expected to present to the Supreme Court this week a list of those civil servants who were the beneficiaries of the NRO but cases against them stood revived when the apex court struck down the ordinance last year.
The section 15 of the NAB Ordinance 1999 says the person convicted by courts stands disqualified for 15 years and has to cease public office, if any, forthwith, ex-prosecutor general Irfan Qadir said.
“Additionally, section 15 also disqualified the convicted person from contesting elections,” he said, adding, “the section 24 empowers the NAB chief to order arrest of the accused during the case investigation.”
Ikram Chaudhry, who also presented his arguments in the NRO case on behalf of his client, says that the NRO beneficiaries holding public offices must be suspended under NAB laws.
“Whether their cases are being tried in courts or their sentences have been suspended, it’s binding on NAB to suspend their services,” he said.
Attorney Geneal Maulvi Anwar-ul-Haq believes that the government would present two lists of NRO beneficiaries through ministry of law and NAB by end of this week.
According to fresh reports of public servants prepared by the NAB and the law ministry, Interior Minister Rehman Malik’s name appears on top of the NRO beneficiaries’ list. He was convicted in various cases of illegal gratification and recently his appeal was dismissed by the Lahore High Court.
Moreover, Sindh Minister Shoaib Bokhari, Minister for Local Bodies Sindh Agha Siraj Durrani, Defence Minister Ahmad Mukhtar, MQM Parliamentary Leader Dr Farooq Sattar, Minister for Ports and Shipping Babar Ghauri, Minister of State for Housing Tariq Anis, Pakistan’s Ambassador to the US Hussain Haqani and Political Secretary of President House Salman Farooqi have been convicted by accountability courts.
Interestingly, the name of President Asif Ali Zardari has been omitted from the list prepared by clubbing the ones put together by the law ministry and NAB.
Besides, the lists, copies of which are available with The Express Tribune, cite the names of 13 Auditor General of Pakistan officials. Among them are Assistant Superintendent Abdul Razzaq Bhatti, account officer Shahamat Ali, typist Tariq Mehmood, assistant audit officer Hanif Ahmad Rahi, senior auditors Abbas Ali, Muhammad Safdar Hussain and junior CM Ibrar Hussain.
The officials of Capital Development Authority were also not far behind in getting benefits under the NRO. Prominent among them are Assistant Director Manzoor Hussain Shah, Naib Tahsildar Muhammad Farooq and Taramat Hussain.
The officials of Post Qasim Authority also derived benefit from this law. Among the leading names are XENs Civil Pir Bux Solangi and Hamzo Khan Gabol.
Some 19 names of Federal Board of Revenue employees figure in the list. They are: Collector Custom Muhammad Nawaz Butt, Assistant Collector Muhammad Ali Changezi, Inspector Custom Khalid Aziz, Collector Adjudication Customs Javed Iqbal Mirza, Superintendent Dry Port Customs Muhammad Saleem, Assistant Collector Customs Asim Majeed and Khizar Iqbal, Appraising Officer Naseerud Din, Principal Appraisar, Sakhi Muhammad, Appraising Officer Customs Qasim Pervaiz, Principal Appraiser Custom Qazi Afzaal Hussain, UDC Income Tax Muhammad Usman, LDC Income Tax Arshad Mehmood, AC Custom Javid Iqbal Mirza, Inspector Custom Sarwar Akhtar, Accounts Officer Muhammad Sarwar, Superintendent Custom Muhammad Younis Butt, Inspector Customs Sher Dad Khan and Sajjid Hussain.
Prime Minister Yousaf Raza Gilani recently asked the NRO beneficiaries to resign ‘voluntarily’, saying that the list of public servants who profited from NRO would be submitted to the SC once the verification process is completed.
Published n The Express Tribune, October 4th, 2010.
=====
A question of ‘strategery’
By Feisal Naqvi
Published: April 22, 2011
The writer is a partner at Bhandari, Naqvi & Riaz and an advocate of the Supreme Court. The writer can be reached at http://twitter.com/#!/laalshah. The views presented in the article above are not those of his firm
The problem of how to resist a superior force is one that is as old as time. As it happens, so is the answer.
When confronted with overwhelming force, the solution is not to offer open battle but to hide in the shadows, emerging only to snipe at a passing column, to draw a detachment into a small but deadly skirmish; in short, to inflict the death of a thousand cuts on the enemy.
The term ‘guerrilla’ literally means ‘little war’ and was first coined to refer to the fighters who harassed the armies of Napoleon in Spain. From there, it is a direct line descending through the Long Marchers of Chairman Mao to the Viet Cong, the Mujahideen, the Taliban, the rope-a-dope tactics of Muhammad Ali, and, most pertinently, the legal wing of the PPP.
When the PPP first came to power, it had the option of embracing the lawyers’ movement. Instead, while the PPP repeatedly swore to reinstate the Chief Justice of Pakistan (CJP), perhaps even with one hand on the Holy Quran, it also repeatedly reneged on those oaths. It was only as a consequence of a popular convulsion which left the PPP no choice, that Iftikhar Muhammad Chaudhry was restored as the CJP.
One likely reason why the PPP took such an obstructive stance is that there is very little which can be done about a rampant judiciary. At the end of the day, the only real check on the superior judiciary is its sense of propriety. That sense of propriety depends in part on inherited tradition and in part on public perception. The Pakistani public, however, sees the judiciary as a solution for all evils. All of which is another way of saying that our judiciary is currently not significantly constrained by public perception.
In these circumstances, how does one survive an evidently (but perhaps righteously) hostile court? The solution, as noted above, is to adopt the standard tactics of the insurgent. The PPP, therefore, does not pick direct fights with the judiciary: Instead, it prevaricates, it delays, it finesses, it draws the court into a debilitating sequence of meaningless fights and so it lives to fight another day.
Take, for example, the case challenging Musharraf’s infamous National Reconciliation Ordinance (NRO) which had erased criminal charges pending against many persons (coincidentally including the late Benazir Bhutto and her husband). In December 2009, the Supreme Court (SC) declared not only that the NRO was unconstitutional but that all cases processed under the NRO were still open, including, most importantly, the cases against Asif Ali Zardari earlier pending in Switzerland.
After its decision, the SC exerted every sinew to get the federal government to ‘implement’ the NRO judgment, by writing to the Swiss and asking them to restart the cases. Even though any such letter would have been a waste of time, the Swiss having no interest in pursuing Mr Zardari any more, the PPP refused. This, in turn, produced a series of hearings in which the federal government presented every possible excuse to refuse to send the letter in question, including the official version of ‘the dog ate my homework’ (‘Sir, voh file nahin mil rahi’). Eventually, the SC gave up and suspended its own judgment in review proceedings.
There is much speculation that the shelving of the review petition was intended by the judiciary as some sort of an olive branch. If it was, the gesture failed. Instead, the relationship between the judiciary and the PPP has continued to be one which, in colloquial Punjabi, is described as existing between a brick and a dog.
Many members of the legal community regard the PPP government’s approach as shameful. That may well be true, but it misses the point. By entangling the judiciary in a never-ending series of skirmishes, the PPP government has succeeded in muddying the waters. Faced with daily reports of strife between the government and the judiciary, the average citizen tends to triangulate so that even those who favour the judiciary leave open the possibility that, perhaps, the judges are also at fault. This response operates to the advantage of the government because, while the regime is already subject to heavy criticism in any number of fields, the judiciary must, like Caesar’s wife, avoid even the appearance of impropriety.
The manner in which the government has handled the recent re-emergence of the NRO review petition is a perfect example of legal guerrilla warfare. On day one, the federal government asked to change its lawyer, knowing full well that the application was likely to be refused. Had the SC called the government’s bluff and allowed the change of counsel on day one, the review would have been decided by now. Instead, the SC unwittingly cooperated by sternly rejecting the application. The Feds then challenged the rule which says that lawyers cannot be changed in review (again on the basis of a risibly defective argument), at which point it finally became clear to everyone that the government was not interested in arguing the matter, only in claiming victim status.
Having already boxed itself in, the SC then tried to extricate itself by saying that (a) the additional attorney-general (AAG) could be heard as he had been a lawyer in the original case and (b) the AAG could — nudge, nudge, wink, wink — be assisted by any counsel of the government’s choice. This eminently sensible option was, of course, rejected by the government on “grounds of principle”. In the meantime, the solicitor instructing the AAG withdrew, as he was allegedly “indisposed” (though apparently healthy enough to deal with 400 other cases, as was acidly noted by the CJP) while the file dealing with the withdrawal of instructions was found to have been “misplaced”. The net result so far is that two weeks of judicial time have been wasted and the SC seems stuck with no option but to dismiss the review application; which is perhaps why the case was recently adjourned for two weeks.
Law schools tend to teach jurisprudence more than military tactics. But if the judiciary is to avoid being outfoxed, the CJP may have to replace his copy of Black’s Law Dictionary with Sun Tzu’s Art of War.
Published in The Express Tribune, April 23rd, 2011.
No comments:
Post a Comment