A sedulous ruling-Babar Sattar
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(Legal eye)Part II
Monday, January 25, 2010
Babar Sattar
If Asif Zardari has no convictions pending against him the day he qualified as candidate for president, he can sleep much better after the NRO judgment. And if he can nurture the ability to seek the counsel of sensible, forthright individuals, the political temperature can be brought down to sustainable limits and the country will not need to suffer his imprudent public outbursts.
In 1958 the Supreme Court of Pakistan held that if a superstructure is built on a rickety foundation, the entire structure of such rights comes tumbling down in the event that the foundation is found illegal. Most legal minds agree that if Asif Zardari was not qualified to be a candidate for president in the absence of the NRO, he could be found ineligible to have become president and consequently stay president after the court declared the NRO void ab initio. Zardari’s team has, however, consistently claimed that there were no convictions against him that were quashed due to the NRO. If this is indeed the factual position, Asif Zardari is home safe as far as the law is concerned. In the NRO ruling the court has dilated on Section 31-A of the NAB Ordinance that prescribes punishment for absconders.
The court has held that a conviction for being an absconder must be reversed separately in appeal, and does not automatically go away even if the conviction for the main charge has been suspended or reversed. During the NRO Case hearings, lawyer A K Dogar had pointed out to the court (on the basis of a news report) that while the main conviction of Zardari in the BMW case had been suspended, his conviction in the same case for being an absconder still stood. The court has now clarified the legal position. Whether or not such elaboration of the law adversely affects Asif Zardari would depend on his individual circumstances. If his lawyers were negligent enough not to appeal his conviction as absconder under Section 31-A of the NAB Ordinance, he could be in trouble.
Other than this, there could only be three judicial mechanisms to push Asif Zardari out of the Presidency and the court has shut such windows through the NRO Case and the PCO Judges Case.
One, Article 62 of the Constitution could be interpreted in such an expansive manner that the candidature of any parliamentarian (and also the president) could be challenged for being dishonest, even in the absence of an order of conviction passed by the tribunal or court adjudicating the charges of corruption. In this regard, the court has reiterated its past interpretation of Article 62 and confirmed that mere allegations of corruption are not sufficient to question the eligibility of a parliamentarian under Article 62.
Two, the court can hold that Article 248 (that affords the president immunity against civil and criminal prosecution when in office) is against the principles of equality and social justice as enunciated by Islam and applicable under Article 2-A. And thereafter, applying the test of repugnancy, strike or water down the immunity afforded to the president under Article 248.
But in the NRO Case addressing the issue of any perceived conflict between Article 2-A and Article 45 (the president’s authority to grant pardon), the court held that it doesn’t have the power to apply the text of repugnancy and strike down any part of the Constitution for being in conflict with Article 2-A. This has clarified that the Supreme Court is in no mood to dress up the Constitution with creative interpretations that could produce immediate political consequences for Asif Zardari.
And, three, in the NRO Case as well as the PCO Judges Case the apex court has expounded its doctrine of constitutionalism, democracy and limited powers. The court has held that in interpreting and applying the explicit provisions of the Constitution it will bear in mind the objects of our fundamental law to represent the collective aspirations of the people and protecting their interests. But that as a creature of the Constitution it can only exercise such authority as vested in it by this fundamental law and therefore has no power to venture outside the framework of the Constitution even on grounds of saving the interests of the people of Pakistan.
The import of this doctrine of unbending fidelity to the text and spirit of the Constitution is that the present Supreme Court has expressed its inability to “validate” any extra-constitutional or praetorian initiatives. This, together with the fact that the court has not reinterpreted the meaning of Articles 41, 47, 62, 63 and 248 (that determine the qualifications, eligibility, protection against prosecution and mechanism for removal of the president), the claims that the court has issued a person-specific judgment is incomprehensible.
What the court has done in elaborating the conscience and morality of the Constitution is highlight the universal principles of honesty, integrity, equality and justice that are reflective of our cultural values and enshrined in our fundamental law. The fact that upholding such principles impacts disproportionately some individuals who have not abided by such principles in the past does not make the ruling person-specific.
Further, the fact that our history is ridden with ugly precedents and our elites have been able to flout the law and get away with it is a poor argument for continuing to condone illegality. The muffled allegations that the court is acting on behest of the establishment or the army to cut Zardari down to size are partly rooted in our chronic cynicism as a society and zealous adherence to the proverb that “the more things change, the more they stay the same.”
The generation that grew up in an independent Pakistan, saw it cut into half and is presently at the country’s helm, seems to suffer from an utter lack of faith in its own ability to change. This sense of imminent doom, together with sustained political disempowerment due to repeated military interference in politics, seems to have engendered a now incurable syndrome of psychological disempowerment.
This thinking throws to doubt the very concept of individual autonomy — i.e., an individual can actually do what he or she thinks is right without being someone else’s underling. Consequently, even when the apex court roots its decisions in the unambiguous principles and provisions of our Constitution, we see such decisions as tools for implementing a conspiratorial scheme against the civilian government.
The argument being made is not that the transition to effective democracy and civilian control of the military will come easily, as the military undoubtedly remains the most powerful institution within the state. But that we must suspend the disbelief that the judges of the superior courts, after putting up a fierce resistance to uphold independence of the judiciary and the letter of the Constitution, will suddenly stoop and begin to act on the behest of interventionists within the military.
The problem with our cynical mindset notwithstanding, the flawed perception that the judiciary and the military are working in alliance is also nourished by deficiencies in the PCO Judges and the NRO rulings, as also pointed out by Sardar Raza Khan in his separate note. Gen Musharraf authored the NRO, and yet we find no focus in the detailed judgement on how the author must be held accountable for his mala-fide acts, even though it instructs the government to proceed against other individuals who acted in contravention of the law, such as Malik Mohammad Qayyum. Such propensity of the court to ignore the individual who molested the Constitution was evident even in the PCO Judges’ Case. While the court held the oath-taking judges accountable, it passed no instructions on how to bring the oath-giver to book.
There are many amongst us who warn that across-the-board application of constitutional principles will bring the entire house down. But had the country heeded such advice we would still be living with an Abdul Hameed Dogar court. The Supreme Court must bear in mind that notwithstanding “ground realities” and other extraneous considerations, selective application of principle is antithetical to rule of law.
(Concluded)
The writer is a lawyer based in Islamabad. Email: sattar@post.harvard.edu
A sedulous ruling-Babar Sattar
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A sedulous ruling
Part I (Legal eye)
Saturday, January 23, 2010
Babar Sattar
The writer is a lawyer based in Islamabad.
The hype around the Supreme Court’s detailed judgement in the NRO case is understandable in view of the elevated political temperature in Pakistan, the conspiracy-mongering propensity of Asif Zardari and the aspiration of his detractors to see him pushed out of the Presidency through the judicial process. The only problem with the hullabaloo is that it is not justifiable in view of the text of the judgement.
We have heard wishful interpretations of the judgement claiming that the president has been denuded of his constitutional immunity against prosecution while in office, and that his fate is now in serious legal jeopardy. And we have also heard proponents of the Zardari-led PPP lobbing insinuations that the judiciary might be functioning as the implementing arm of the establishment to oust him, and that such witch-hunt will be fought by the party tooth-and-nail.
While Zardari’s opponents and proponents seem to be interpreting the ruling in similar fashion with their respective spins, neither position is supported by what the apex court has actually said in its detailed judgement.
Let us recall that there were two major criticisms against the NRO short order: one, that it was jurisprudentially unsound, given that it relied on Articles 62(f) and 227 of the Constitution in striking down the NRO, that this would open a Pandora’s box with eligibility of parliamentarians being questioned for their not being “honest, sagacious and non-profligate,” and all kinds of laws being challenged for being un-Islamic; and, two, that it was a politically motivated ruling aimed at creating adverse political consequences for the person of the president. A dispassionate reading of the text of the detailed judgement puts to rest such fears and apprehensions.
The Supreme Court has held that the NRO was in conflict with Article 62(f) as it scuttled the due legal process through which the qualifications of a candidate are to be determined. The Constitution mandates that the corrupt should not be elected as legislators. In the event that there are allegations of corruption, such charges have to be proved or dismissed through the court process.
The NRO simply shut down cases where corruption allegations were being verified by courts, and was unconstitutional as it simply took away the opportunity to determine the eligibility of a public officeholder for purposes of Article 62(f). The court, however, clarifies that this article “cannot be considered self-executory,” and only “if a person involved in corruption and corrupt practices has been finally adjudged to be so, then on the basis of such final judgement” can his or her candidature be challenged on the basis of Article 62(f). In short, eligibility of parliamentarians cannot be challenged unless a competent court has convicted them.
Further, in relation to Article 227, the apex court has opined that Article 25 of the Constitution (that guarantees equality between citizens) “has its origins in Quranic injunctions,” and thus any law violating Article 25 is also in breach of requirements set out by Article 227. But that “the observations relating to the application of Article 227 and to the morality and conscience of the Constitution are only further supportive observations.” And in reiterating the role of the Islamic Ideology Council in declaring whether or not laws are in contravention of Article 227, the court has emphasised that the precepts of Islam and the morality and conscience of the Constitution “cannot be invoked as a matter of course, and certainly not to strike down formal legislation or executive action which is otherwise found to be within the scope of the Constitution and the law.”
The ruling in the NRO case has elevated the quality of our constitutional jurisprudence by advancing a textual theory of constitutional morality. The Supreme Court has elaborated that our fundamental law is a living document and that its provisions need to be interpreted in a purposeful manner, in view of the objects of the Constitution — i.e., its underlying soul, conscience and morality must be provided a legally enforceable formulation in order to actually benefit the people of Pakistan.
But in elaborating the values of our Constitution and giving them effect, the Supreme Court has not been oblivious to its limited role and authority within the constitutional scheme of separation of powers. The decision of the apex court in the PCO Judges Case to afford the parliament an opportunity to approve the Musharraf ordinances (including the NRO) in view of the concept of trichotomy of powers was proof of such realisation.
Further, through the PCO Judges Case as well as the NRO Case, the court has started weaving a doctrine of judicial power that requires purposive constitutional interpretation clubbed together with a considered and cautious exercise of institutional authority in line with the principles of democracy. While this may sound apparently contradictory, the court seems to be suggesting that while it would not shirk its responsibility to interpret and implement provisions of the Constitution to secure the fundamental rights of citizens, it is fully aware of the role and responsibilities of other pillars of the state.
For example, Justice Jawad Khwaja’s note in the NRO Case provides an insight into the court’s thinking when it states that “the court, while exercising the judicial function entrusted to it by the Constitution, is constrained by the Constitution and must therefore perform its duty in accordance with the dictates of the Constitution and the laws made thereunder.
“If the court veers from this course charted for it and attempts to become the arbiter of what is good or bad for the people, it will inevitably enter the minefield of doctrines such as the law of necessity, with the same disastrous consequences… Decisions as to what is good or bad for the people must be left to the elected representatives of the people, subject only to the limits imposed by the Constitution…
“Legislators and functionaries performing executive functions may resort to expediency, compromise and accommodation in achieving political and policy objectives considered in their judgement. So long as such decisions conform to and are not violative of the Constitution, the executive and the legislature are only accountable to the electorate and not to courts. This is the democratic principle enshrined in the Constitution.”
In other words, in propagating its theory of constitutional morality, the Supreme Court is not usurping the functions of other organs of the state or arrogating to itself the right to judge other institutions from a moral standpoint. The court is interpreting the Constitution as a social contract that enables the state and the citizens of this country to order their lives in accordance with the social, moral and ethical values of this society.
But at the same time, it is recognising the fact that the Constitution speaks not merely to the courts, but to all institutions and individuals that comprise Pakistan. To the extent that an individual or institution contravenes the law and the Constitution, the court must step in to uphold the law. But should the representatives of the people in the executive or the parliament frustrate political, social or ethical expectations of the society as opposed to the requirements of law, it is for the people to judge them, and not the court.
The perception that the court is about to skin the leadership of the ruling party (an element being decried by Asif Zardari’s proponents and celebrated by his detractors) must therefore be evaluated in view of (i) this unfolding doctrine of democracy, constitutional morality and limited judicial powers, and (ii) the text of the NRO judgement reflecting on provisions of the Constitution that could affect Asif Zardari’s eligibility as president, and consequently his incumbency.
(To be concluded)
Email: sattar@post.harvard.edu
NRO… by Akraam Sehgal
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NRO… by Irfan Siddiqui
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NRO… by Abdul Qadir Hassan
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NRO… by Irfan Siddiqui
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