Feisal Naqvi

Archive for the ‘law’ Category

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.


Dispensing Justice

In law, Pakistan on June 25, 2008 at 3:46 am

One reason why dispensing justice gets taken so lightly is because it seems like such a piece of cake. Rocket science, we know, is difficult. But how difficult can it be to order restitution for a poor old widow? The answer is, pretty damn difficult

Some years ago, when Mian Sahib Senior was still enjoying his second term as PM, PTV initiated a television programme in which he was the star. The set for the festivities featured only the PM himself, a desk and a telephone. When the half hour of proceedings began, various oppressed people would call in, Mian Sahib would pick up the phone, and after listening patiently would tell one of his off-screen minions to do the needful. Lo, and it was so.

The tradition of the ruler actually functioning as a fount of justice is one which has strong roots in our culture. Haroon ur Rashid, the famous Caliph of Baghdad, was famous for slipping around town dressed like a beggar to discover what the masses were murmuring about and to provide instant relief, if necessary.

More recently, the courts of the Great Mughals reportedly featured a bell which any aggrieved person could ring to summon the badshah salamat himself and to demand that justice be provided. Even today it is fairly routine for the press to report that so and so secretary or such and such officer has held an “open kutchery” to deal with people’s complaints.

My point here is this: yes, it is good that our leaders are compassionate. But in a modern state, the availability of justice only through the intercession of the highest authorities is not a sign that all is well. Instead, it is a sign that the system of justice has collapsed.

The reasoning behind this argument is very simple. When our borders are threatened, our prime ministers do not volunteer for sentry duty. Mian Nawaz Sharif did not spend weekends shovelling snow in Siachen and, for that matter, neither did President Musharraf. In fact, had either of them shown up, they would probably just have gotten in the way. Dispensing justice is no different. It is an art that is best left to professionals who in turn must abide by specified rules and procedures.

One reason why dispensing justice gets taken so lightly is because it seems like such a piece of cake. Rocket science, we know, is difficult. But how difficult can it be to order restitution for a poor old widow?

Actually, the answer is, pretty damn difficult. If you start dishing out money (and help) to destitute old widows, then pretty soon you have to figure out how destitute and how old widows have to be before they qualify for prime ministerial assistance. Drawing those lines may not be rocket science, but it is not a piece of cake either.

Another piece of the puzzle is that the common law tradition has always had a tradition of lay judges. Ever since 1215, it has been the law in England that no man may be imprisoned except by a judgement of his peers. Similarly, the duties of a magistrate in England were normally handled by the local squire who, for the most part, did a competent job dealing with misdemeanours and breaches of the peace. The DC of yore was also very much the fount of all justice in his district, wearing both executive and judicial hats with aplomb.

But to return to reality, gentlemen, amateur hour is now over. Justice is no incidental virtue to be dealt with casually; it is, as per Rawls, “the first virtue of social institutions, as truth is of systems of thought.” In other words, just as no scientific theory is any good if it does not produce correct results, no system of governance is any use if it does not produce justice.

Let me now try and wrap together the various strands of this column.

While Pakistan has been blessed, from time to time, with judges of great character and competence, Pakistan has never enjoyed an even remotely adequate system of justice. But even keeping in view that very sorry record, the current crisis is the worst which has ever struck the Pakistani justice system. Rescuing Pakistan’s system of justice from its current nadir will require both a lot of good people as well as systemic institutional and legal reform. Both of those aspects are equally necessary.

We will have no justice without the return of the deposed judges. But without proper reform, we will not have very much justice even if they do return.

The Law Strikes Back

In law, Pakistan on April 10, 2008 at 3:41 am

According to one joke, there are 10 types of people in the world: those who understand binary and those who don’t.

For those of you who are not computer geeks, let me explain. Binary, or base two, is a form of counting in which there are only two digits: 1 and 0. So, in binary, the number 1 is still 1, but the number 2 is written as 10, while the number 3 is written as 11 and so on. This is in comparison to the more usual form of counting, which is to say the decimal (or Base 10) system, in which there are ten digits (1,2,3,4,5,6,7,8,9 and 0).

You might ask what all of this has to do with judges and parliament. The answer is that just like the meaning of the number 10, the solution to the issue of how judges are to be reinstated depends upon the point of view one chooses to adopt.

Let me explain further.

On November 2, 2007, Pakistan had an effective and respected legal framework, i.e. the Constitution, under which the President of Pakistan had certain powers. Those powers admittedly did not include the right to set aside the Constitution, to amend the Constitution or to fire those judges whom the President, or his allies, found uncooperative.

On November 3, 2007, General Musharraf tried to create a new legal order. In this new legal order, he claimed the right to make all such changes in the Constitution as he deemed fit, to pass such laws as he deemed fit, and to fire all those judges he deemed unfit.

Five months later, there are two options before Parliament (and by extension, the people of Pakistan). The first option is that Parliament can accept the new legal order proposed by General Musharraf, in which case the restoration of the judges can only be accomplished through a constitutional amendment, which in turn requires a two-thirds majority in each of the houses of Parliament.

The second option available to Parliament is to reject the new legal order proposed by General Musharraf. In that case, all the actions taken by General Musharraf, including the removal of certain judges, are entirely illegal and void ab initio , and can hence be simply ignored. General Musharraf is then also a man who has committed treason and who is liable to be impeached by Parliament for subverting the Constitution.

There are several points which need to be understood about the choice between these two options.

The first point is that the debate as to which option should be taken by Parliament is not a legal debate but a political (or rather, moral) one. It is not a legal debate because, by definition, a legal debate takes place within an agreed framework. In this case, the debate is not within the boundaries of an agreed framework: it is a debate as to which framework we (or Parliament) should adopt.

The second point is that in both cases, a parliamentary resolution changes nothing (at least, not in “legal” terms). If the legal order is that of November 3, 2007, then a resolution has no force. And if the legal order is that of November 2, 2007, then a resolution is unnecessary because the only legally appointed judges are those who were judges on November 2, 2007 and the only legal chief justice is the man who was chief justice on November 2, 2007.

But if a parliamentary resolution changes nothing, then how will the choice be made? And who will make the choice?

The answer to this question is simple: the choice will ultimately be made by those who control, and those who constitute, the coercive apparatus of the state. And if the police force of Islamabad is any indication, that choice has already been made.

On March 30, 2008, various Supreme Court officials entered the house of Mr Justice Khalilur Rehman Ramday to evict him forcibly from his official residence, under the orders, as per news reports, of the incumbent Chief Justice of Pakistan. These officials then requested the police authorities stationed within the judicial colony to assist them in carrying out the orders of the Chief Justice.

Under Article 190 of the Constitution, all executive authorities are required to act in aid of the Supreme Court. But the Islamabad police refused to help the Supreme Court officials. Moreover, not only did they refuse to help the Supreme Court officials, they later assisted lawyers in replacing the furniture taken out from Justice Ramday’s house.

The refusal of the Islamabad police to obey the orders of the purported Chief Justice of Pakistan is extremely significant. A sovereign whose commands are not obeyed and not implemented is no sovereign. Bahadur Shah Zafar in Rangoon was the same man as he had been in Delhi: the only difference is that his commands were no longer backed by the threat of executive action and coercive force.

At this time of writing, Chief Justice Dogar had not taken any action to “punish” the policemen who refused to obey his order. Instead, quite embarrassingly for him, the officers of the Supreme Court who were trying to carry out his orders are being questioned pursuant to an inquiry launched by the Ministry of the Interior. It therefore seems as if the executive branch no longer recognises Chief Justice Dogar’s authority.

On February 18, 2008,the people of Pakistan gave a verdict against President Musharraf and the parties allied with him. This time, it looks as if their judgement is actually being implemented.

Feisal Naqvi studied Islamic history at Princeton University and law at
Yale Law School

This article appeared in the April 4, 2008 issue of The Friday Times

Law, Morality and the NRO

In law, Pakistan on October 22, 2007 at 6:31 am

There is law. And there is morality. The two are not always the same.

 The new National Reconciliation Ordinance has made many people very angry. Some people are angry because they think it is “immoral” for President Musharraf to have given a “Get Out of Jail Free” card to people who have looted the country. Others are angry because they think that the NRO is bad politics and that the President could have managed a transition without joining hands with Benazir. And then there are those who are angry because they think the NRO is unconstitutional.

 In their anger, those opposed to the NRO on legal grounds have been only too happy to latch on to arguments that the NRO is unethical or otherwise undesirable. But the relationship between law and morality is not that simple.

 To begin with, it is necessary to understand what the NRO does (and does not do). In simple terms, the NRO does three main things:


1.     It allows the Federal and Provincial  governments to “withdraw from the prosecution” of any person for any crime, if a committee headed by a retired judge concludes that the person concerned has been falsely involved for political reasons, and the case in question was initiated before October 12, 1999 and after January 1, 1986.

 2.     It provides that no sitting member of Parliament or a provincial assembly can be arrested without the permission of a parliamentary committee made up of equal numbers of government and opposition members.

3.     Most controversially, it provides that all pending trials and investigations under the NAB Ordinance against holders of public office which were initiated prior to October 12, 1999 stand “withdrawn and terminated with immediate effect.”

The reason why the first provision is controversial is because traditionally, withdrawal from prosecution has only been allowed with the permission of the Court trying the matter. Furthermore, in the Asfandyar Wali case, the Supreme Court struck down the power of the Chairman NAB to unilaterally withdraw from prosecution after reaching a deal with an accused person. However, a conditional (and probably coercive) withdrawal based upon a quid pro quo is very different from an unconditional withdrawal by the government. It is therefore doubtful whether the Asfandyar Wali holding would apply to the NRO. But even if it did, it would still only mean that the provision of the NRO in question would be read down to require the approval of the Court before the government would be allowed to withdraw.

So far as the second provision is concerned, a quick survey of Pakistan’s chequered past should be enough to convince any skeptic that parliamentarians (particularly those from opposition parties) are often arrested on the flimsiest of grounds. Allowing the arrest of parliamentarians only subject to the permission of a bipartisan commission therefore seems eminently sensible. It should also be noted that there are other countries in the West, such as Italy, also recognize a limited degree of immunity for parliamentarians precisely for the same reasons. Of course, this provision is quite susceptible to abuse. But it seems to be common ground amongst all concerned that we have no option but to entrust our future to the elected representatives of the people.

The main ground of opposition to the third provision of the NRO is that it violates the fundamental right to equality recognized by Article 25 of the Constitution. If you are going to forgive politicians, the argument goes, then you might as well forgive every single thief in Pakistan: after all, what is the difference?

A good (and brief) definition of the right to equality is the obligation of the government to treat like things like (and to treat different things differently). In legal terms, the debate over the provision is the debate over whether or not “holders of public office” constitute a separate and distinct class. If politicians are different from you and me, then they can obviously be treated differently.

The biggest problem for the opponents of the NRO is that the provision in question modifies the NAB Ordinance which applies only to holders of public office by making them subject to several crimes. Those crimes, by and large, do not apply to ordinary people or even ordinary thieves. So, if the NAB Ordinance is at all valid, then holders of public office must be deemed to constitute a separate and distinct class.

To restate the argument, the NAB Ordinance is predicated on the assumption that politicians are a shifty bunch and deserve to be placed under special scrutiny and subject to special crimes. The NRO modifies the NAB Ordinance by saying that while politicians may be a nasty bunch, they should not be held liable for cases instituted prior to October 12, 1999. The argument that the NRO is invalid because it treats politicians separately from normal people (or even normal thieves) is therefore self-defeating. If politicians are a separate class for the purpose of placing extra restrictions on them, then they are also a separate class for the purpose of removing certain of those additional restrictions.

A separate argument which can be made is that the cases in question are all cases instituted (or continued under) under the Ehtesab Act, 1997 and then further continued under the NAB Ordinance, 2001. The decision to continue those cases under the NAB Ordinance was a legislative choice. If so, it follows that the option to discontinue those cases is also available to the legislature.

There are of course many other arguments both for and against the NRO, but at this point I want to acknowledge that there is certainly a huge outpouring of moral disgust with respect to the NRO. I mention this because all of the legal arguments in the world sometimes count for nothing when faced with the actual anger and revulsion of a society.

My first assignment in law school was to analyse the constitutionality of admission requirements to the public universities of Mississippi, one of the poorest and most racially divided of America’s states. So far as I was concerned, the issue was simple. The admission requirement in question was facially neutral – a minimum SAT score of 830 – and the fact that it produced racial segregation was, in my view, unfortunate but irrelevant.

As it so happened, the Supreme Court of the United States disagreed with me, 9-0. In the view of their lordships, the fact that a rule was facially neutral was irrelevant if it did, in fact, produce racial segregation. What they noted instead was that the time for excuses and polite subterfuges had come to an end. Segregation was not just wrong but morally evil. And every rule which allowed this evil to continue was also wrong because in some cases, what counts is not just the process but the end result.

So, there is law. And there is morality. And sometimes, the two are the same.