Feisal Naqvi

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.

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