Hard cases

The writer is a lawyer based in Islamabad.
“Great cases like hard cases make bad law. For great cases are called great not by reason of their importance... but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment.”
— Oliver Wendell Holmes in his dissenting note in Northern Securities Co. vs. United States (1908).
If everyone understood court rulings with facility, the lawyers would lose a lot of their business. But the latest Supreme Court order in the NRO implementation case has not just baffled the media and the ordinary folk but has also left a majority of the lawyers at sea. Has the apex court declared that the prime minister is dishonest and will he stand disqualified unless the larger bench scheduled to assemble on January 16 changes its mind? Has President Zardari also breached his oath of office for stating and endorsing the PPP’s position that its government will not write to the Swiss authorities and can be removed from office through judicial process?
What is the purpose of the menu of options presented in the ruling? Is it an offer to the Gilani government to pick and choose from and are the options mutually exclusive? Are they meant to guide the larger bench? Or is it just loud thinking for the general education and information of the public at large and to keep the media busy? How do you decipher the ratio of the order (i e that has binding effect) from obiter dicta (incidental remarks)? One hesitates to analyse and critique a judgment authored by Justice Asif Khosa, who, few would disagree, is amongst the smartest legal minds in the Supreme Court. But why fear getting it wrong when all around you are as lost as you are.
As the legal battle over the NRO is spread over two and a half years, let us first re-cap the saga. President Musharraf promulgated the NRO to legally whitewash Benazir Bhutto (and her husband), which Condoleezza Rice tells us was part of the

US-brokered deal to allow BB back into Pakistan to work in partnership with Musharraf. Parliament never endorsed the NRO. The matter went to court. The Supreme Court of Pakistan decided back in December 2009, amidst widespread legal/ethical outrage in the country, that the National Reconciliation Ordinance was unconstitutional and thus void ab initio (from the beginning).
It further stated that all actions taken under the NRO were to be undone as if the NRO never happened. So apart from the cases in Pakistan that were shut down under the NRO, the then attorney general of Pakistan, Malik Qayyum, had written a letter to the Swiss authorities withdrawing Pakistan’s interest as ‘civil party’ in the money-laundering prosecution continuing in Switzerland against BB and Zardari. In the aftermath of this letter, the Swiss attorney general abandoned the prosecution. The Supreme Court ruled that Malik Qayyum’s letter was unauthorised and illegal, and that Pakistan government should write to the Swiss authorities stating the same. In other words withdraw the withdrawal letter.
This carried the possibility of reopening the Swiss cases against Asif Zardari, who by then was president of Pakistan, and so the PPP government began dragging its feet. While it didn’t defend the NRO before the Supreme Court, it decided to file a review once it realised that the order had consequences for the person of Asif Zardari. While the review lingered on, the Supreme Court didn’t stay the implementation of its order. Meanwhile, a Supreme Court bench was formed to ensure that the NRO order was implemented and all cases shut down under the NRO were reopened and properly prosecuted.
While reopening cases before Pakistani courts wasn’t contingent on the federal government’s will and happened almost immediately, it was the government that needed to write the letter to the Swiss authorities. This it was loath to do and hasn’t done. Finally the review against the NRO ruling was also heard by the Supreme Court and dismissed. The NRO decision achieved finality. But even after this dismissal PPP leaders continued to hold the position that no letter would be written to Swiss authorities in defiance of explicit court orders.
Some argued that such a letter would amount to a contravention of Article 248 of the Constitution that affords the president immunity against criminal proceedings – an issue never raised before the Supreme Court during the NRO hearing or at the review stage. The president finally explained his party’s position in a recent interview with Hamid Mir: writing a letter to the Swiss authorities as mandated by the NRO judgment would tantamount to “prosecuting the grave of Benazir Bhutto” and will therefore not be written on grounds of “principle”.
In this backdrop the only issue before the Supreme Court’s NRO implementation bench is to oversee and ensure that the final and binding full-court ruling of the Supreme Court in the NRO case is fully implemented. And the only part of the NRO ruling that has been blatantly flouted is the government’s obligation to write a letter to the Swiss authorities that would have the effect of reasserting Pakistan’s interest in the (erstwhile) money-laundering cases against Asif Zardari.
Let us remind ourselves that in these NRO implementation proceedings the Supreme Court has no authority to reconsider the wisdom of its final NRO ruling, amend any portion of that ruling or exempt the government or a government functionary from the obligation to abide by it. At this stage the court can only dwell on whether or not implementation of the ruling is satisfactory and take action against anyone defying the ruling. And thus in view of this extremely limited scope of the bench seized of the NRO implementation matter, the blaring reprimand issued by the Supreme Court this week, that contained within it threats of stern action against the prime minister, on the one hand, and the option of throwing judicial hands up and doing absolutely nothing against the delinquent, on the other, was remarkable to say the least.
As opposed to the general impression what the latest NRO implementation order doesn’t do is offer the Gilani government a catalogue of options to choose from. It states that the court (and not the government) has six options before it. One, having found that the prime minister has, prima facie, wilfully breached his oath under the Constitution to honestly perform his duties in accordance with the law, consider if he is liable to be disqualified as a parliamentarian under Article 62(1)(f) of the Constitution. Two, initiate contempt of court proceedings against the prime minister that could lead to his disqualification under Articles 63(1)(g) and (h) of the Constitution.
Three, create a judicial commission that would execute the relevant directions on the NRO case i e probably write to the Swiss authorities on behalf of the Pakistani government. Four, afford any interested party the opportunity to raise the immunity argument under Article 248 of the Constitution against writing the letter to the Swiss authorities. Five, having found that chairman NAB has prima facie committed misconduct for refusing to take action against Adnan Khwaja and Ahmed Riaz Sheikh, consider if he should be removed from office under Section 6(b)(i) of the NAB Ordinance. And six, do nothing and leave it to the parliament and the people of Pakistan to judge those disobeying the Constitution.
The crucial findings that can be deducted from this order are three-fold: one, the buck stops with the prime minister and he will be held responsible for the government’s defiance of the NRO judgment; two, the prime minister has breached his oath to office and is liable for dishonestly, and legal action would follow unless he proves otherwise to the Supreme Court; and three, chairman NAB is guilty of misconduct and is liable to be removed from office, unless he explains his actions and proves otherwise to the satisfaction of the court.
(to be concluded)
Email: sattar@post.harvard.edu