WASHINGTON DIARY: On the NRO judgement
The decision of the Pakistan Supreme Court on the National Reconciliation Ordinance (NRO) was a foregone conclusion. This was a badly written law, easily susceptible to promoting discrimination, corruption, misplaced classification of prosecuted groups of people (the corrupt, murderers, rapists, etc). Additionally, it violates the basic tenets of the constitution. However, the Supreme Court decision manifests contradictions and lack of historical perspective that has to be given primacy in national decision-making.
The decision, not an easy reading for untrained people like me, leaves no concept undefined at a tedious moving fashion leaving nothing in suspicion. More importantly, the various concepts applied in the arguments have been taken from Indian epic court decisions. When needed, Italian and Swiss laws have been quoted as well. This is done because other than banking upon the court decisions of other modern states, the judges cannot build arguments about the matter relating to modern Pakistan. It is also clear that the judges have depended more on the court decisions of secular countries rather than theocratic states.
It is also interesting that no case from Islamic countries has been quoted in the judgment. The only arguments relating to equality and tauba have been taken from Islam to strengthen the main body of the judgment. Even at that point the honourable court has made it clear that these are not the main arguments and no one should extend them to other moral questions before the judiciary.
However, two legal experts, Mian Allah Nawaz and M Sardar Khan, appointed as amicus curiae, have drawn heavily on religious concepts. Honourable Justice Chaudry Ijaz Ahmed has tried to rewrite the entire history of Muslim rule in the subcontinent. Unfortunately, his reading of history is based on mythical notions taught in Pakistan’s educational system.
For example, idealising Aurangzeb, he has written: “After the death of Aurangzeb, the system of justice established by the Muslims was totally disregarded and Muslims were fighting with each other for securing power.” Rather than concluding that Aurangzeb’s extreme religious rule led to the fall of the Mughal Empire, he has adopted the view of Mullah Shahi.
Aurangzeb came to power by imprisoning and torturing his father, Shah Jahan, murdered his three brothers along with their innocent children, wedded his eldest son into a Hindu family (a Mughal tradition), threw most of the Shias in Kashmir and crushed Hindu merchants under his elephants merely because they were protesting against high taxes. Aurangzeb did not implement a viable Islamic law but rather imposed a narrow minded Mullah Shahi which caused the fragmentation and downfall of the empire.
Quoting Farishta, he uses another myth that during Muslim rule, literacy was 90 percent and the subcontinent was the most prosperous region. He should have better known some historical facts of that period. When Farishta and other historians of that period refer to Muslims, they mean only the immigrant elites: the Turk-Persian elites treated converted Muslims like the British dealt with converted Christians.
The elite treated converted Muslims, mostly from lower castes, like untouchables. Famous (or notorious) historian Zia-ud-Din Burni writes in Tareekh Feroz Shahi: “The teachers should not pour the diamonds of knowledge in the dogs’ throats, i.e. the lowly and wretched people. Shopkeepers and people born in low castes should be taught only about prayers, zakat, fasting, hajj along with a few separas of the Quran, so that their religious direction is straightened. Other than that they should not be taught anything. Knowledge causes evil in lowly people. Low caste people, working in lowly professions, are only capable of committing evil deeds.”
The immigrant elite did not want the converted Muslims be given lucrative state jobs. Therefore, converted Muslims were given jobs in stables and other lowly places. This was the justice and education meted out to common Indian Muslims. As a matter of fact, most Muslim rulers gave state jobs to higher caste Hindus rather than converted Muslims. This is one of the reasons that conditions of the common Muslim did not change during Muslim or British rule. Honourable Justice Chaudry Ijaz Ahmed has also employed a mythical history of the independence war of 1857 by accusing Hindus and invoking hatred towards people of other religions. He quotes from Shahab Nama (a book of fairy tales) and other so-called Muslim intellectual writings that fall in the same category of mythical make-believe history.
I am not sure if the Chief Justice also shares these ideas with Justice Chaudry Ijaz Ahmed. But if he does, along with Khawaja Jawad who has emphasised the concept of tauba, then one can infer that the court had made a decision on the basis of certain beliefs and the main body of the judgment is a cover woven from modern law and the courts of secular countries. I hope this is not the case because many people have objections to demanding tauba from one person and not from others who made similar grave mistakes in the past.
Many want that every institution making grave mistakes in the past should acknowledge it openly and show some modesty and humility in judging others. Honourable Justice Sardar Muhammad Raza Khan, in his note, has mutedly questioned the narrow definition referred to by Honorable Justice Chaudry Ijaz Ahmed Khan in quoting a verse where the ills of society are said to be reflective of the ruler. Justice Khan’s query is genuine in asking if the ruler means the present one or the misrule of previous ones as well.
There is a problem with the way the honourable court has defined the concept of reconciliation. Sometimes the concept of reconciliation is not realisable directly or in immediacy. For example, despite the lawyers’ movement, if Benazir had not manoeuvred Musharraf, military rule may have continued and there would be no genuine elections and hence no restoration of the independent judiciary. Similarly, if she was not killed, Musharraf would not have been shown the door so soon. In other words the reconciliation between Benazir and Musharraf was between the military and the most popular political parties because Nawaz Sharif would not have been able to return either. Messing up of things by Zardari and his colleagues does not mean that the original reconciliation did not rehabilitate the democratic system and was just beneficial for two individuals. Sometimes the historical process overrides seemingly individual decisions. The honourable court’s judgment may have unintended consequences as well.
The writer can be reached at firstname.lastname@example.org
January 26th, 2010