Feisal Naqvi

Archive for December, 2009|Monthly archive page

The lonely death of the NRO

In law, Pakistan on December 24, 2009 at 5:21 am

What then are we left with at the end of the hullabaloo? We are left with a law which has not just been declared unconstitutional so much as it has been paraded around town, facing backwards on a donkey.  We are left with a short order which alarms. And we are left with a president still very much safely ensconced in his palace.

There has much rejoicing at the demise of the NRO. Celebratory banners have been posted, passionate editorials have been written and calls for the resignation of President Zardari have been launched with renewed vigour.

In the middle of all this clamour, reasoned analysis has taken a back seat. But as the din subsides, there are a number of questions which need to be answered before the celebrations can be justified. To begin with, is the NRO judgment truly the landmark it is claimed to be? And secondly, how does the demise of the NRO affect Asif Ali Zardari?

Any detailed analysis of the NRO judgment is difficult at present for the simple reason that there is no detailed judgment on hand, only a short order. Nonetheless, both the proceedings leading up to the short order as well as the text of the short order itself provide cause for concern.

The 17 member bench which heard the NRO petitions was the single largest bench in Pakistan’s entire history, larger even than any of the benches formed to hear the various dissolution of Parliament cases. Given the normal assumption that the size of the bench reflects the magnitude of the issues involved, the very size of the bench made it clear to all and sundry that a “historic” judgment was in the offing.

The proceedings before the bench were – at least on the one day that I witnessed – less than epic. The learned counsel representing the petitioner had self-evidently worked very hard on his case and wanted to present his argument in the context of a broad historical sweep, taking in reconciliation efforts from the fall of Mecca all the way up to South Africa’s Truth and Reconciliation Commission. The bench, however, was in no mood for philosophy. What the judges wanted was simple fare; these are the provisions of the NRO which are unconstitutional and these are the articles of the Constitution which they violate. But that in turn begged a further question: if the matter was as simple as the 17 member bench clearly thought, why have a bench of 17 judges?

The peculiar nature of the proceedings was then exaggerated by the failure of the Federal Government to defend the NRO on the grounds that it had been promulgated by the “previous regime.” Presumably, the thought behind this tactic was to concede an easy victory to a rampant judiciary and try to avoid an embarrassing defeat. In legal terms, the decision was not justified. And in any event, it failed.

The decision not to defend the NRO was unfortunate because (as the saying goes in the Army) one salutes the office, not the man. The same holds true for legislation. The NRO may well have been a misguided and thoroughly unconstitutional piece of legislation but it was, nonetheless, a law duly promulgated by a duly elected president. The Federal Government, therefore, did not have the option of simply abstaining from comment. Instead, it was incumbent upon the Federal Government to have either defended the law or else provided reasoned arguments against its constitutionality. As it was, the decision by the 17 member bench to examine the process by which the Swiss proceedings against Asif Zardari had been terminated panicked the Federation into engaging a learned senior counsel who in turn stunned the court by claiming that the CIA and the GHQ were conspiring against the politically elected leadership, a claim which he subsequently withdrew as being merely his “personal views.”

In terms of actual legal reasoning, there are two main justifications deployed by the short order in support of its conclusion that the NRO is violative of “various constitutional provisions.” The first is that by giving benefits to a class of people involved in corruption cases, “the classification has created a divide amongst ordinary citizens of Pakistan and a class of alleged criminals.” The second is that “in depth examination of the NRO suggests that it has not been promulgated to provide reconciliation on national basis” as compared to the true reconciliation provided, for example, by the 1973 Constitution and that accordingly “promulgation of the NRO seems to be against the national interest.”

While one hesitates to be critical of a 17 member judicial bench, the pronouncement that “the classification has created a divide” is an opinion, not a reasoned analysis based on established legal principles. More dangerously, the statement that the NRO has not, in fact, been promulgated to provide reconciliation suggests that the NRO has been struck down in part on the basis of an assessment that the motives of the legislature were somehow impure or tainted with mala fides. However, there is ample law to the effect that legislative mala fides is not a ground which can be used to strike down a law. That body of law exists because it is generally accepted that the job of the judiciary is not to determine whether legislation is in the “national interest” but only to see whether or not a law is constitutional. Establishing a precedent whereby the judiciary gets to peer into the heart of a legislator and divine his intent is dangerous business. The NRO judgment may have been passed by a 17 member bench in the context of an ordinance but the principle of legislative mala fides, once established, can be applied by any judge to strike down any law, even if passed by both houses of Parliament.

The single most disturbing feature of the NRO verdict though is its pronouncement that the NRO was violative of Article 227. Article 227(1) of the Constitution provides that all existing laws shall be brought in conformity with the Injunctions of Islam. However, the same article also provides that clause (1) of Article 227 shall only be given effect through referral of a matter to the Council of Islamic Ideology, which in turn is only empowered to give an advisory opinion.

The reliance by the Supreme Court on Article 227 to invalidate the NRO is thus problematic both legally and practically. It is problematic legally because it appears to run counter to the text of Article 227 itself and because under the Constitution, it is the Shariat Court which has the exclusive jurisdiction to declare laws to be unIslamic. It is problematic practically because if a 17 member bench of the Supreme Court can strike down a law on the basis that it is unIslamic (and hence unconstitutional), then any judge of any High Court can equally well declare any law to be unconstitutional as being violative of the Injunctions of Islam. The reliance on Article 227 and the Injunctions of Islam is also surprising because following the insertion of Article 2A into the Constitution by General Zia, the Supreme Court made a very determined effort in the 1990s to ensure that legislation could not be struck down by courts (other the Shariat Court) on the grounds of being violative of Islam. If the short order indeed means what it says, then that entire line of caselaw restricting the impact of Article 2A may have been negated.

During the run-up to the NRO verdict, it was clear that popular opposition to the NRO was driven by the perception that Asif Zardari had somehow used the NRO to escape scot free. However, the demise of the NRO does nothing to President Zardari. So far as his criminal cases are concerned, they may now be pending (rather than withdrawn) but they cannot proceed for so long as he is President. The demise of the NRO also does not affect his qualifications as a candidate for President in that he is still not a convict, even if the NRO is deemed never to have been enacted. Yes, the courts may still find him not to be “sagacious, righteous and non-profligate and honest and amen” (as is required by Article 62 of the Constitution) but that option was equally available prior to the demise of the NRO.

What then are we left with at the end of the hullabaloo? We are left with a law which has not just been declared unconstitutional so much as it has been paraded around town, facing backwards on a donkey.  We are left with a short order which alarms. And we are left with a president still very much safely ensconced in his palace.

This column has also been published in today’s edition of the Friday Times.

Bye Bye, Mr. President

In Uncategorized on December 11, 2009 at 6:14 am

I wrote this column back on October 24 but did not print it in DT for several reasons. One was that the matter was sub judice and I did not really want to fall afoul of the judiciary in that regard. The second was that the column was missing a crucial link in that it did not explain how the judiciary would use the NRO case to get rid of the President since technically, the demise of the NRO did not affect the election of the President. Thirdly, I just did not want to be in the firing line for making such a bold prediction (which pusillanimity irked one Ejaz Haider to no end). I am putting it up on this blog now because re-reading it makes me feel very prescient (and very foolish for not printing it earlier).

A steamroller moves slowly. But what does stay in its path tends to get squished extremely flat.

I mention this unremarkable fact because unless something changes in the near future, a steamroller is going to emerge slowly from a large white marble building on Constitution Avenue and start chugging up the hill towards the presidency.

My basis for this prediction is as follows. The NRO has already been presented in Parliament. If it passes, it will get challenged in the Supreme Court. If the law does not pass (and even if it gets struck down), the benefits obtained by various people, including one Asif Ali Zardari, will come up for scrutiny before the Supreme Court. And by all indications, the beneficiaries of the NRO are going to wind up in the same condition as any small animal run over by a steamroller.

I make this fairly bold prediction not because I find the legal arguments against the NRO to be persuasive. I have yet to study the matter in any depth but at least the standard argument used against the NRO – i.e., that it violates the right to equality under Article 25 – is rubbish.

The Article 25 argument against the NRO is that (i) the Constitution requires all people to be treated equally; (ii) the NRO specifically favours politicians; and therefore (iii) the NRO is unconstitutional. The short answer to this is that (i) Article 25 does not prohibit reasonable classification; (ii) politicians are a separate class as can be seen from the fact that their affairs are subject to heightened legal scrutiny; and (iii) differential treatment of politicians is therefore not violative of the right to equality.

There are, of course, other arguments against the NRO as well. For example, one argument is that this law is a legislative judgment, an unacceptable intrusion into the domain of the judiciary. Another argument, which I find attractive, is that it violates the maxim which provides that no man may be a judge in his own cause. Here, a political party is passing a law which benefits most the leaders of that party, and whose disinterested application is dependent entirely on the neutrality of executive appointees subject to the control of that same party.

However, this is not about law. Instead, this is about the outrage felt by a large number of lawyers with respect to the NRO.

Many of us have been taught that emotion and reason should exist in separate chambers, so that the rigour of formal logic does not get polluted by “mere” emotion. This divide (popularized by Descartes) has now been shown through modern neuroscience to be false using studies of people who had suffered from brain injuries which rendered them unemotional but also made them incapable of making decisions. The age-old concept of a judge as a neutral and passive observer making decisions without allowing his own personal biases to intrude is therefore just a myth. Emotion informs logic at every step of the way and there is no such thing as a disinterested judgment.

To come back to my point, the simple fact is that the NRO is not going to survive judicial scrutiny because – as per my highly unscientific surveys –  most of the legal profession looks at the law and feels like vomiting.

This is not a minor matter. When I was a young associate, I returned from one acrimonious hearing and gleefully informed my learned senior that I had left the judge concerned in no doubt as to my poor opinion of his abilities. Rather than be congratulated, I was instead informed by my learned senior that many years ago he had committed the same mistake and that his then senior, the legendary Manzur Qadir, had told him something like the following:

“Young man, judges are often wrong but that is no excuse for talking back. If the judge is 100% wrong, you must say nothing. If the judge is 120% wrong, you must say nothing. Even if he is 150% wrong, you must say nothing. Of course if the judge is 200% wrong and if he then rubs it into your face, well then my son, you would not be a man if you did not respond.”

Unfortunately for Mr. Zardari, the NRO is a matter on which many lawyers are of the opinion that Parliament is 200% wrong, legal subtleties be damned. Whether or not the judiciary shares the view of the bar is yet to be seen. But it does not bode well for the President.

Interestingly enough, my conclusion from this analysis was that if there was indeed an inevitable clash on the NRO coming down the turnpike, the judiciary would be well advised not to faff around with ad hoc pronouncements on sugar prices and instead stick to the straight and narrow. However, as explained by my learned partner in law, the sugar prices hullabaloo has only hurt the judiciary in the eyes of purists like myself: so far as the man on the street is concerned, the sugar crisis hearings have only demonstrated that the judiciary is sticking up for the little guy against an entrenched cartel of crooked politicians.

Let us now therefore put all the bits and pieces together. The NRO will either pass or not pass by November 28th: either way, the legality of the benefits enjoyed by the President is inevitably going to come up for judicial scrutiny. After the restoration of the Chief Justice, the single most respected institution in Pakistan is the judiciary, whose credibility has only been enhanced (in the eyes of the masses) by the Supreme Court’s handling of the sugar crisis. And at this point, the best guess regarding the judiciary’s attitude leads to the conclusion that the NRO is dead on arrival.

Bye bye, Mr. President.