Feisal Naqvi

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.

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  1. […] as pointed out by Monsoon Frog, the mention of article 227 is extremely problematic because the scope of article 227(1) is limited […]

  2. Excellent analysis Feisal. The mention of Article 227 in the SC’s is indeed disturbing. What is more disturbing is the fact that the full court (jirgah as pronounced by Asma Jahangir) agreed on this pronouncement.

  3. The Zardari government accepts the NRO judgment. There are many who are trying to gain political mileage from this decision. They are interpreting the decision according to own letters which aims toppling the incumbent Govt. The main fault lies in the decision of the court. For example, Asma Jahangir, the chairperson of the Human Rights Commission of Pakistan (HRCP) has termed the court verdict as a “politicized judgment”. Similarly, Ali Ahmad Kurd, the former President of the Supreme Court Bar Association (SCBA) and the firebrand leader of the movement for the restoration of deposed judges has accused the court of acting upon the agenda of the forces that are working on the minus-one formula. Are these charges justified?

    It is significant that court’s judgment has severe political fallouts and the situation is already deteriorating, in such a situation it is tantamount to add fuel in the fire. In the present situation definitely one forced to think that either the court is working in cahoots with the establishment to get rid of Zardari? Pakistan is at slippery slopes and such immature decision can have dangerous political implications in addition to making the judiciary controversial.

    The most dangerous thing is that Court is frequently invoking controversial clauses. I suggest that court should have avoided invoking the impugned clause because of its controversial character. However, if it did not do so, it could have disastrous outcomes. By invoking controversial clauses clause the court has prepared the ground to disqualify Zardari as the President of Pakistan. It simply means that Courts are politicized which is unfortunate for the country and democracy.

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