Flaws in the judgment – By Asma Jahangir
The Supreme Court (SC) has spoken and the nation must bow its head. The chief justice has asked members of the bar to pray for the judiciary. This too must be respected, as the Almighty alone can rescue those who wish to destroy themselves.
There is open friction between the ruling party and the court. By not restoring the SC judges earlier and letting Justice Dogar run amok with the law, the government lost face.
On the other hand, after a historical struggle for establishing the rule of law, the judiciary was expected to be above reproach in a political atmosphere of nepotism and incompetence. Woefully, that was not to be.
First came the judgment penalising the post Nov 3 PCO judges while ignoring the illegal takeover of Musharraf. This was followed by a host of undesirable suo motu actions.
Then came a request from the Supreme Court to appoint an ad hoc judge to the bench. The judges case clearly frowned upon such appointments, unless absolutely essential. Article 182 is also clear that such a request is made under special circumstances and needs presidential approval.
Further, seniority in elevations was ignored. The bar had strongly and rightly criticised Musharraf for letting the chief justice of the Lahore High Court rule the roost, while judges junior to him were being elevated to the SC. Arbitrary appointments erode the independence of the judiciary.
At the very least the judiciary is expected to be impartial. That too is suspect, as seen in the NRO judgment. Throughout, the NRO judgment has assumed the guilt of those who benefited from it. Courts are bound to presume a party innocent until found guilty. In paragraph 43 the judgment reproduces portions from a book by Benazir Bhutto, traces the reasons for the promulgation of the NRO and concludes that the ordinance had benefited only criminals and corrupt public office holders.
It then mentions how money plundered by Marcos of the Philippines and Sani Abacha of Nigeria was brought back from foreign banks. Once again, the court jumps to conclusion, glossing over the fact that both Marcos and Abacha were unelected rulers whose downfall did not start with judicial activism. Marcos was overthrown by the people and Abacha’s family was charged with money laundering after his death.
Throughout the almost 300 pages of the detailed NRO judgment a finger is pointed towards the president — but there’s hardly any mention of the immunity he enjoys under Article 248 of the constitution.
The SC, through its judgment, confirms that the Government of Pakistan spent Rs660m to Rs2bn to recover $60m laundered abroad. This constitutes an indictment of the institution of the judiciary which allowed these cases to fester for so many years with large amounts of money being spent under its very nose. This amount could not have been spent by Musharraf for his aversion to corruption but for victimising Benazir Bhutto. This lends credence to the PPP’s claim that it alone has been subjected to a witch hunt.
Throughout the judgment the SC has emphasised Article 62 of the constitution and shown keenness to disqualify holders of public office. While discussing the insertion of Section 33 F in the NAB ordinance, the judgment argues that by avoiding conviction through the misuse of law those with the stigma of corruption attached to them could not become members of parliament.
Meanwhile, the use of Articles 62 and 63 are justified as they remain a part of the constitution despite being recognised as obnoxious additions by dictators. If we are to turn over a new leaf in our political history, then to plead that that legacy of dictators that suits us will be accepted and the one that hurts us will not is a lame defence.
Stoning to death and amputation of limbs are valid punishments but their implementation would outrage public sentiment. It is shocking that even some stalwarts of civil liberties defended the use of Article 63 on the premise that it existed in the constitution — a pity that hatred for an individual should drive one to negate all that they painfully fight for all their lives!
Morality and religion are preached throughout the judgment. Article 227 has received its own share of prominence but the judgment cautions overzealous litigants not to expect the courts to strike down a law on the touchstone of this article.
The court tries to explain that observations relating to the application of Article 227 and to the “morality and conscience of the constitution” are only supportive observations. Yet, the substantive part of the judgment declares the NRO void ab initio being ultra vires and violative of Article 227 and others.
The judgment has relied heavily on the principle of maintaining the trichotomy of power. Taking away the powers of the courts to declare people guilty or otherwise would infringe upon the judicial domain. Yet, the SC has challenged the domain of the president to promulgate an ordinance without satisfying the apex court that advice given for its enactment was sound enough.
It also limits the powers of the legislature for enactments that will not stand the stiff test of law, morality and religion. Oddly, the superior judiciary has not so jealously guarded its domain when civilians are tried by military courts. The SC endorsed the judgment of the Lahore High Court disallowing a petition by a civilian sentenced to death by a military court. As for the others the trichotomy of powers as laid down in the NRO judgment translates into what is theirs is theirs and what is theirs is also ours.
The NRO judgment cannot be all about the evil in Asif Zardari. It must be seen on its own. It is a reminder of the time when the military’s illegal acts against Nawab Akbar Bugti were being tolerated because the latter was an unsavoury person. A number of well-meaning but misled individuals joined the official chorus in demonising Bugti who was being hounded by the military.
The nawab was no saint but the manner in which he was preyed upon and eventually killed turned him into a martyr and gave rise to multiple insurgent groups in Balochistan.
President Zardari, too, is far from blameless but he is not the only one who is so in the system — and he has been elected. His indiscretions ought to be criticised and removing him through constitutional means would not distress too many people. But circumventing all norms of the rule of law to get him would drown us too.
The writer is an advocate of the Supreme Court and a human rights activist.
Tuesday, 26 Jan, 2010