fatman17
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Defending the indefensible
Thursday, January 28, 2010
Saleem Rizvi
In democratic societies national interests trump personal interests. Public discussions on matters of national interest foster transparency and accountability, but the moment a public debate loses its focus and turns personality-specific objectivity becomes the first casualty. The current discussion on the dead NRO is one such example. The deafening noise around this issue has turned the focus from what lies in the larger national interest to what is good or bad for one individual.
No matter how hard one may try to manipulate the truth in the aftermath of the NRO judgment, the question remains: is it in the national interest to continue to defend those who have lost the protection of the NRO?
The NRO was a glaring example of bad laws. It was an appalling act of a falling administration which desperately wanted to prolong its political life by any means possible. How can the people of Pakistan forget the slyness with which the NRO was designed, completely shrouded in secrecy and without a shred of public discourse or input?
The people of Pakistan now demand that the process of accountability be completed. No one should be above the law. Why should a crucial national interest be thrown out the window in order to protect the personal interest of some in high places? The people's quest for justice is unwavering, for justice has eluded them for so long. The NRO was an instrument of usurpation in a country whose populace was denied an equitable share of power and resources for long.
Time and again the powerless and disenfranchised Pakistani masses were kept from protecting their national interests, with the tacit involvement of the higher judiciary which frequently relied on pseudo-jurisprudence to strengthen the hands of the powerful. But this time around, the people were in an entirely different mood, and the higher judiciary took full notice of it. How could it not? After all, the present higher judiciary is the direct beneficiary of the civil society's long struggle for the advancement of a democratic, egalitarian and forward-looking Pakistan.
The Supreme Court, as the final arbiter on constitutional issues, has already hammered the last nail in the NRO's coffin. By declaring the NRO void ab initio, the Supreme Court erased it as if it never had existed. The term "void" means something of no effect. It is important to note that the court did not simply declare the NRO void. It took an added step and made it "void ab initio." In simple words, "void ab initio" means that the action, document or transaction in question is null and void from the beginning.
Therefore, if the NRO had no validity right from the moment of its inception, then it is natural to conclude that it cannot confer any legal rights upon anyone who used it to his or her benefit in the first place. What is now the legal status of those in public offices who were not eligible to contest for public office were it not for the NRO? The instrument with which their deeds were protected has now shattered, leaving them exposed with pre-NRO charges or convictions. If they were not eligible to run for the positions they are holding now, their eligibility to hold on to such positions cannot be justified by the spirit and letter of law, or by any stretch of imagination.
If the government finally opts to seek an appellate review, it must do it on the strength and merit of its underlying argument. A frivolous appeal would accomplish nothing but prolong the agony. If such a review is sought, one wonders what would be its purpose other than the ostensible desire to have the infamous NRO resurrected. How can one even consider seeking an appellate review, given the appalling purpose for which the NRO was manufactured? Would the decision, if any, to seek an appellate review serve any national interest? Or is it another convoluted attempt to protect a flock of odd individuals who have long been wanted for the commission of a variety of illegal acts, ranging from civil breaches to outright criminality?
One must not forget that the NRO was not even amnesty. It was impunity of the most flagrant type. Amnesty is not offered without qualification and conditions. It is generally given to those who, after accepting their wrongdoing, seek forgiveness in the interest of broader national good. In civil cases, amnesty seekers are made to undo the damage that they have caused or made to pay a fine where the damage cannot be reverted. Unqualified, unconditional and unquestioned amnesty is nothing but impunity in disguise.
Would it not be an honourable way if the accused seek their day in court to clear their names, instead of hiding behind an illegal curtain of protection? According to an old Chinese proverb, "A clear conscience never fears a midnight knock."
The process of accountability is always multi-dimensional and multi-fold, and thus demands the participation of all branches of government for its execution; it is an integral part of good governance. Courts cannot do everything. No matter how justly and expeditiously courts dispense justice and render a judgment, it remains a piece of paper if it not enforced effectively.
The wheel of justice can only move forward if its movement is carefully calibrated and supported by all others involved. Our nation's history is cluttered with innumerable selfish episodes when national interests were pushed aside to protect personal interests. At this turning point in our nation's history, it is about time for us to learn from the horrendous experiences of our past, and set out on a path to fulfil the dreams of our founding fathers.
The writer is an attorney based in New York. Email: saleemsrizvi@yahoo.com
Thursday, January 28, 2010
Saleem Rizvi
In democratic societies national interests trump personal interests. Public discussions on matters of national interest foster transparency and accountability, but the moment a public debate loses its focus and turns personality-specific objectivity becomes the first casualty. The current discussion on the dead NRO is one such example. The deafening noise around this issue has turned the focus from what lies in the larger national interest to what is good or bad for one individual.
No matter how hard one may try to manipulate the truth in the aftermath of the NRO judgment, the question remains: is it in the national interest to continue to defend those who have lost the protection of the NRO?
The NRO was a glaring example of bad laws. It was an appalling act of a falling administration which desperately wanted to prolong its political life by any means possible. How can the people of Pakistan forget the slyness with which the NRO was designed, completely shrouded in secrecy and without a shred of public discourse or input?
The people of Pakistan now demand that the process of accountability be completed. No one should be above the law. Why should a crucial national interest be thrown out the window in order to protect the personal interest of some in high places? The people's quest for justice is unwavering, for justice has eluded them for so long. The NRO was an instrument of usurpation in a country whose populace was denied an equitable share of power and resources for long.
Time and again the powerless and disenfranchised Pakistani masses were kept from protecting their national interests, with the tacit involvement of the higher judiciary which frequently relied on pseudo-jurisprudence to strengthen the hands of the powerful. But this time around, the people were in an entirely different mood, and the higher judiciary took full notice of it. How could it not? After all, the present higher judiciary is the direct beneficiary of the civil society's long struggle for the advancement of a democratic, egalitarian and forward-looking Pakistan.
The Supreme Court, as the final arbiter on constitutional issues, has already hammered the last nail in the NRO's coffin. By declaring the NRO void ab initio, the Supreme Court erased it as if it never had existed. The term "void" means something of no effect. It is important to note that the court did not simply declare the NRO void. It took an added step and made it "void ab initio." In simple words, "void ab initio" means that the action, document or transaction in question is null and void from the beginning.
Therefore, if the NRO had no validity right from the moment of its inception, then it is natural to conclude that it cannot confer any legal rights upon anyone who used it to his or her benefit in the first place. What is now the legal status of those in public offices who were not eligible to contest for public office were it not for the NRO? The instrument with which their deeds were protected has now shattered, leaving them exposed with pre-NRO charges or convictions. If they were not eligible to run for the positions they are holding now, their eligibility to hold on to such positions cannot be justified by the spirit and letter of law, or by any stretch of imagination.
If the government finally opts to seek an appellate review, it must do it on the strength and merit of its underlying argument. A frivolous appeal would accomplish nothing but prolong the agony. If such a review is sought, one wonders what would be its purpose other than the ostensible desire to have the infamous NRO resurrected. How can one even consider seeking an appellate review, given the appalling purpose for which the NRO was manufactured? Would the decision, if any, to seek an appellate review serve any national interest? Or is it another convoluted attempt to protect a flock of odd individuals who have long been wanted for the commission of a variety of illegal acts, ranging from civil breaches to outright criminality?
One must not forget that the NRO was not even amnesty. It was impunity of the most flagrant type. Amnesty is not offered without qualification and conditions. It is generally given to those who, after accepting their wrongdoing, seek forgiveness in the interest of broader national good. In civil cases, amnesty seekers are made to undo the damage that they have caused or made to pay a fine where the damage cannot be reverted. Unqualified, unconditional and unquestioned amnesty is nothing but impunity in disguise.
Would it not be an honourable way if the accused seek their day in court to clear their names, instead of hiding behind an illegal curtain of protection? According to an old Chinese proverb, "A clear conscience never fears a midnight knock."
The process of accountability is always multi-dimensional and multi-fold, and thus demands the participation of all branches of government for its execution; it is an integral part of good governance. Courts cannot do everything. No matter how justly and expeditiously courts dispense justice and render a judgment, it remains a piece of paper if it not enforced effectively.
The wheel of justice can only move forward if its movement is carefully calibrated and supported by all others involved. Our nation's history is cluttered with innumerable selfish episodes when national interests were pushed aside to protect personal interests. At this turning point in our nation's history, it is about time for us to learn from the horrendous experiences of our past, and set out on a path to fulfil the dreams of our founding fathers.
The writer is an attorney based in New York. Email: saleemsrizvi@yahoo.com
