Solomon’s Justice
A few days ago, the Supreme Court of Pakistan, came up with their version of Solomon’s justice, setting aside the conviction of former PM Ms Benazir and her husband, Asif Zardari, by the Ehtesab Bench of the Lahore High Court (LHC) in what is generally known as the SGS case, ordering a re-trial for them. Without the benefit of a detailed judgement we can only surmise that they accept that the LHC Bench was biased but the evidence may be too compelling enough to make a new trial necessary. By the time Solomon, son of David, died, he had become the greatest King of Israel. According to Encyclopedia Britannica King Solomon was known for establishing Israelite colonies in the mid-10 century BC to handle military, administrative and commercial matters, the subsequent demand for fortresses and garrison cities making him embark on a vast building programme. In fact the First Temple’s construction was completed by him in 957 BC. Only a part of the second Temple, known as the Wailing Wall now survives on Temple Mount in Jerusalem, Ground Zero in the strife between Israelis and Palestinians. Known mainly for his sagacity, Solomon was also a poet but history knows him best for what is called “Solomonic justice”.
Maxim had it right in his cartoon in THE NATION last Sunday, he had Ms Benazir saying, “When a court convicts me it is a kangaroo court and if it acquits me it upholds the dignity of the judiciary”. Once the damning audio-tapes of conversations between Justice Qayyum of the Lahore High Court (LHC), then LHC Chief Justice Rashid Aziz, then Federal Law Minister, Mr Khalid Anwar and Saifur Rehman, former Chairman, Ehtesab Bureau were brought on record, it would have been a travesty of justice to convict the wife-husband former ruling duo, howsoever strong the evidence. While Benazir and her supporters may congratulate themselves that she was exonerated, the Court actually let her go on a technicality as it should have. Any time a court is perceived to be guilty of partiality of any kind, the justice meted out will be deemed to be tainted and will never be acceptable.
Accountability, Filipino Style
No one in modern times personified the misuse of public office for acquisition of wealth by illegal means more than late President Ferdinand Marcos and his wife Imelda Marcos. The lasting symbol of that blatant corruption was the 3,000 pairs of shoes owned by Mrs Imelda Marcos which were gawked at by demonstrators (some bare-feet) who broke into the Malacang Palace soon after the Marcos family fled Manila for safer havens. The street power that brought Corazon Aquino to the Presidential chair demanded accountability and one of her first acts as the new President was to issue Executive Order No.1 on Feb 28, 1986 creating the “Presidential Commission on Good Government” (PCGG) to assist her, to, quote “in the recovery of ill-gotten wealth accumulated by President Ferdinand E. Marcos, his immediate family, relations, subordinates and close associates, whether located in the Philippines or abroad, including the take over and sequestration of all business enterprises or entities owned or controlled by them, during his administration, directly or through nominees, by taking undue advantage of their public office and/or using powers, authority, influence or connection or relationship”, unquote. Needless to say, because the Philippines was the very first nation in the Third World to break fresh ground in trying to get the illegal wealth back into the national coffers, as such there were legal loopholes, safeguards, parameters, sensitivities of fairness and due process, etc both in national and international circles. The almost unanimous public demand for immediate accountability needed to have due legal cover and two more Presidential directives, Executive Order No.2 on March 12, 1986 and Executive Order No.14 on May 5, 1986 were issued, making the required explanations and tightening the laws. On March 25, 1986, Presidential Proclamation No.3 Article II Section 1(D) duly ratified by Parliament stated that “the President shall give priority to achieve the mandate of the people to recover ill-gotten properties amassed by the leaders and supporters of the previous regime and protect the interests of the people through orders of sequestration or freezing of assets or accounts”, unquote. The Proclamation stated clearly that “the vital task was the recovery of ill-gotten wealth to help and hasten national economic recovery”, unquote, Philippines having been beggared beyond description by the Marcos-es.
In the mid-80s the international community was still forgiving of despots in Third World countries who not only amassed wealth at the cost of those whom they ruled who also allowed their cronies and relations to run riot at the same time. Imelda Marcos had fantastic PR (Public Relations) among the jet set (“the beautiful people”), people with influence in the corridors of power in most western countries. The cold war not yet being over, the western world still had use for authoritarian regimes which held the line by proxy against communism. The Filipinos did not have a single precedent to help them, yet they went about it expeditiously, cautiously but carefully. Executive Order No.14, a little over two months later, finally put in place the necessary laws to recover the ill-gotten wealth. The laws governing the Commission (PCGG) clearly defined viz (1) who and what was the focus of recovery by the Commission (2) the powers of the Commission (3) it allotted a certain sum (Fifty million Pesos ie. about US$ 4-5 million) for financing of the Commission’s task (4) it spelt out clearly parameters regarding the powers of the Commission (5) it gave out legal cover and immunity to those engaged in the Commission’s work (6) it allowed the Commission to take over and freeze all assets and properties of Marcos, cronies and relatives, etc in whatever form domestically and internationally and not allow disposal till so allowed by the Commission (7) it forbade the disposal, transfer, conveyance, etc of all such assets and properties (8) it commanded those who knew of such assets and properties to report this to the PCGG (9) it allowed the Commission to obtain information from any person, government offices or government agencies (10) to frame and promulgate such rules and regulations as would be necessary to help in the success of the Commission’s work (11) recommend/adopt measures to prevent recurrence of such graft and corruption and (12) appeal to foreign governments in assisting to recover the ill-gotten wealth.
With Bated Breath!
The eloquence of Khalid Anwar and the pronounced filibuster of Aziz Munshi notwithstanding, the merit of the Petitioners case in the Supreme Court against the Presidential Dissolution Order of April 18, 1993 will probably hinge on one crucial finding, did the President have the Constitutional authority to dissolve the National Assembly once it had been called into Session by the Speaker given the fact that once the National Assembly was so-called by the Speaker only he could prorogue it? The extraordinary argument by the Respondent’s Counsel that the President does not hear radio or see TV and so he did not know about the Speaker’s summoning of the NA lends weight to the conviction that even the Respondents concede this point to the Petitioner. Logic would dictate that once the fact of the Speaker’s earlier calling of the National Assembly became known to the President later, his Order should have been subsequently withdrawn. Given this argument as a core of the entire case, one speculates that on this one point alone, the National Assembly will certainly be restored by the Supreme Court.
While his mind has been functioning as sharp as a razor, Aziz Munshi’s heart was quite apparently not into a vigorous Presentation of the Respondent’s arguments. It is demeaning to see a brilliant lawyer searching to establish credibility in the face of the obvious, his arguments did not carry the weight of his own conviction. He seemed to be besieged, fighting a losing battle, probably the best he has been hoping for is a finding by the Honourable Justices of the Supreme Court that Nawaz Sharif may have to seek a fresh vote of confidence from the Members of the National Assembly before he can resume his interrupted stint as the Prime Minister of Pakistan. One can only guess that the in-camera proceedings would carry weight but would not sway the Court. It may be pure speculation but a positive verdict happens to be generally the perception of the intelligentsia and the masses, a street-smart population is almost never wrong. For over four decades they have despaired of being the masters of their own destiny, their so-called public servants having usurped that right and turned them into slaves. Now they see a pronounced ray of hope, any attempt to try and extinguish this by means other than Constitutional would amount to sacrilege, of the ethical and moral kind.
Clear and Present Danger
To deal with the situation in Karachi, the PML(N) threw out its own Chief Minister to impose Governor’s Rule. With disorder rapidly descending into anarchy, the Army was brought in “aid of civil power” under Article 245 of the Constitution, Military Trial Courts (MTCs) being set up to deal with cases that qualified as falling under the head of “terrorism”. Military Appellate Courts were set up as a last resort of appeal, two persons whose appeals had been rejected have been hanged. In the meantime the Supreme Court, having been approached to define the legality of a “parallel” judicial system in the country, has suspended the further carrying out of the extreme punishment of death imposed by the MTCs till the case is pending in court is decided one way or the other. With the MTCs “teeth” clamped for the moment, their deterrent effect has been put in suspended animation.