Supreme Court steps in?

Najam Sethi’s E d i t o r i a l in                                 clip_image001

The Supreme Court of Pakistan under CJP Iftikhar Mohammad Chaudhry has been slowly but surely making some significant, one might even say ominous, moves. The CJP has taken a keen interest in the selection of fellow judges to head key benches hearing politically “sensitive” cases. It is also interesting that the principal SC seat in Islamabad, where all politically explosive cases end up, is packed with restored judges loyal to the CJP while many judges appointed or retained by General Pervez Musharraf or President Asif Zardari have been shunted to faraway benches in Quetta, Peshawar and Sindh.

The fact that these “legal” decisions seem to be potentially tilted in favour of the political ambitions of Mian Nawaz Sharif compels fair comment because Mr Sharif had a decisive role to play in the restoration of Mr Iftikhar Mohammad Chaudhry as chief justice and his other colleagues last March.

The first step in this direction was taken last month when a specially appointed five member bench of the Supreme Court overturned an earlier decision by a Division bench of the Lahore High Court and a three member bench of the Supreme Court which had banned Mr Nawaz Sharif and Mr Shahbaz Sharif from contesting elections on various counts.

There were three interesting dimensions to this review petition judgment. First, one of the judges from the original three member bench that had sustained the ban on the Sharif brothers was shunted out and three new judges were added to make it a five member review petition bench.

Generally, the rule is that barring some exceptional circumstances that make it impossible to retain the old bench, a review petition is heard by the same bench which passed the original judgment. No reasons were given for breaking with the rule. Second, it was also noteworthy that the three judges added to the new bench were judges who had been sacked on November 3, 2007 along with the CJ and subsequently restored – all are considered close to him. Third, the judgment was remarkable because it broke new ground by holding that the presidential “pardon” granted to the Sharifs when they agreed to be exiled to Saudi Arabia in 2000 also entitled them to have their convictions quashed automatically.

This judgment has restored Mr Shahbaz Sharif as chief minister of Punjab and handed the province to the PMLN. It has signaled PMLQ dissidents to join the PMLN, swell its ranks and marginalize the PPP and PMLQ. It has also paved the way for Mr Nawaz Sharif to contest and win a national by-election hands down. Soon Mr Sharif will be ensconced as leader of the opposition in the national assembly. Then another significant chunk of PMLQ dissidents will flock to the PMLN, giving Mr Sharif the muscle to drive a wedge in the PPP-led coalition and try to overthrow it.

The CJP has also made some revealing remarks. He has said that the SC may consider the legality of the November 3, 2007, mini-coup and Emergency by General Pervez Musharraf. He has said that the decision by a seven member bench led by him outlawing General Musharraf’s mini-coup minutes after it was announced remained valid, despite the fact that it was subsequently overturned by a larger SC bench after the event.

If the SC now officially makes this decision in response to any petition, a veritable Pandora’s box of political possibilities could be opened up. Everything that happened subsequent to November 3, 2007, including the general elections that brought the PPP to power and the presidential elections that elevated Mr Asif Zardari to the presidency, could then be deemed “unlawful”, with tumultuous consequences for political stability and continuity. Indeed, the SC could well argue in favour of a mid-term election that would objectively return Mr Nawaz Sharif to power and cut Mr Zardari and the PPP out of the loop.

A bench of the SC has now made another remarkable decision. It says that since the National Reconciliation Ordinance (NRO) is under legal challenge, any relief from criminal conviction or cases pending under it received by anyone is not valid until the NRO is upheld by the SC. This is a perplexing judgment in the absence of any formal “stay” order against the NRO in any court.

It is ominous because many of the criminal and corruption cases against Mr Zardari and other PPP leaders in parliament and government were earlier quashed under the ambit of the NRO. The CJP has also made noises about the right of the SC to review the 17th constitutional amendment and strike it down if necessary. The fact that President Zardari derives all his powers from this amendment, coupled with the other fact that Mr Sharif is barred from becoming prime minister for a third time under it, should not be lost on anyone.

If the SC under CJP Iftikhar Mohammad Chaudhry knocks out the NRO and the 17th amendment in the coming months, it would be only a matter of another six months or so before Mr Sharif is able to brush aside Mr Zardari and the PPP and seize office as a powerful prime minister, with or without a new general election.

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