INHERENT FLAWS IN THE NRO JUDGEMENT.

It is said that the Petitioners and the Honorable S. Court wanted to reverse and nullify the benefits and the harmful effects of this defunct Ordinance, but adjudicating and declaring a dead law as void is not the legal way to go about doing this. There were other ways to do this

FLAWS IN THE NRO JUDGMENT –  by: Tausif Kamal

Courtesy: CRDP, Fri, 29 Jan 2010

Finally I’ve had a chance to review the detailed NRO judgment somewhat and would like to offer the following comments on the Islamic aspects or the Islamic angle firstly and then on other shortcomings of this supposedly ‘landmark’ decision by the Pakistan’s Honorable Supreme Court.

First of all, as I have stated before, invoking and interjection of Islamic tenets by the S.Ct for the purpose of declaring the NRO invalid as per the Pak Constitution was wholly unnecessary and superfluous when the Court already concluded in the judgment that the NRO stood illegal and void since it violated some very basic provisions of the Constitution such as Articles 4, 8, 12, 13, 25, 62 etc, etc. Moreover, neither the Government nor the proponents of the NRO had argued that the NRO was based upon Islamic principles or that it was in full conformity with Islam injunctions, a position that might have required the S. Ct to refute this stance and counter it with Islam-based arguments. In the absence of any such defense of the NRO , what was the point in S. Ct’s interjection into its judgment of an Islamic angle ? None that I can see, unless the Court was trying to placate the Islamist lobby and to prove its Islamic credentials.

Even so, lets start with the opinion of the honorable Chief Justice himself. In para 113 , page 181 of the judgment the Honorable CJ makes a sweeping statement : “The principle of equality has its origin in the Islamic teachings.” Really? Is it true that none of the humanity before Islam, none of the great religions before Islam, none of the great civilizations and philosophers, the Greeks, the Romans, etc, no one ever thought of the concept of equality?

Let me first state categorically that Islam does enjoin equality and universal brotherhood for all Muslims, despite its reference to slaves and the weight given to a woman’s evidence etc. However the concept of equality has evolved through the ages, predating the birth of Islam. Its origins can be traced back as early as the Greek philosopher Epicurus who in 341 BC authored Principal Doctrines and who admitted slaves and women to his school , and the 3rd BC Hellenistic philosophy of Stoics who supported the idea of equality and advocated universal brotherhood and ‘natural’ equality of all human beings. The Roman juristic construction, Jus Jentium, was also a step forward in espousing equality. The Torah, Moses and Christian pronouncements of universal brotherhood clearly proclaimed and envisioned the idea of equality also.

In attempting to establish that Islam promotes equality the NRO judgment improperly quotes Suras of Quran that do not precisely dwell on the subject of equality. For instance, the Honoralbe C.J. refers to Sura 49.13 (Page 181) :” Surely the noblest of you in the Sight of Allah is the one who is most pious”. From this the C.J incorrectly surmises that ” (T)his verse clearly establishes equality of all men and women”. No, it doesn’t. It refers to the highest degree of importance that Allah attaches to the piety or morality of human beings; it doesn’t refer at all to the equality of men and women in Islam.

The honorable C.J. partially quotes Surah Al-Araf ( 7: 172) wherein the Almighty asks the children of Adam and their descendents : ‘Am I not your Lord?’ They said : “Yes we do testify’. However the judgment omits to quote the rest of this Surah which says : “…lest we should say on the Day of Judgment : ‘Of this we were never mindful’ “. This Surah refers to the Covenant of Alast, the original, primordial agreement that has nothing to do with equality. It is the first affirmation by all of human race, not only Muslims, that god was indeed God, the Lord Almighty. It is known as the First Covenant or the First Witness.

Similarly the Honorable C.J. quotes Surah 21:92, which exhorts mankind to serve and obey only the Lord, does not deal with the ” concept of equality” nor it “bestows equal rights upon all” as he asserts. The C.J then discusses the requirements of Tawhid, Taqwa and the “Rule of Law in Islam”, forgetting that his sworn duty was to protect the rule of law in the country of Pakistan and not in Islam.

The NRO judgment also holds that “…all matters of national interest… and all state affairs on all levels must be decided on the basis of the concept of consultation in its true sense as envisioned by the Quran (42:38) and (as) practiced by the Prophet Muhammad (PBUH)”. If this is the case the we might as well wind up the National Assembly, the Senate etc because certainly this is not the consultation process that was practiced by the Holy Prophet (PBUH) nor laid down in the Quran !!

As far as the opinion ofHonorable Justice Ch. Ijaz Ahmed (Page 257) is concerned, it’s in a class by itself. Suffice it to say that it doesn’t belong in the realm of the jurisprudence: its more in the nature of a Tablighi pamphlet and a low level one at that. It should not have been made a part of the judgment.

Honorable Justice Ijaz starts off with a laughable assertion that during the Muslim rule the literacy race in the Subcontinent was 90%. He then proceeds to discuss Islamic history and the concepts of equality and equal protection of law ( no one in human history but only Islam and its founder thought of this), definitions of “Amin”, “morality”, “corruption” etc, Moulana Roumi’s poetry, Wasif Ali Wasif, Shahanama of Qudru ullah Shahab. Finally he unloads the words of wisdom : ” No law can be wholesome unless the principle of amr bil maruf won hi anil munkar (whatever that is) is strictly adhered to “. There you have it folks, none of Pakistan’s laws, including the Constitution, which Justice Ijaz is under oath to defend, is wholesome and apparently not worth defending according to him!

In addition to the Honorable S. Ct’s uncalled for addiction to soliciting Islamic grounds for declaring the NRO invalid, the judgment lacks judicial caliber expected of an apex court. For a good part of the judgment is burdened with voluminous verbatim repetitions of detailed arguments of each and every counsel for the petitioners and opponents of the defunct NRO. On the other hand, it is strange that there’s no mention of the arguments of the other party in this case, i.e. proponents of the NRO. May be because none were offered. As the judgment itself states in para 34: “Admittedly , neither the Federation of Pakistan nor the Provincial Governments have defended the NRO”. If so, it’s debatable whether there was an actual, live case or controversy between contesting adversaries — the existence of which is a pre-requisite for a court to admit a matter for hearing and judicial review.

Also, the judgment unnecessarily dilates upon the meaning in great detail of such basic terms as equality, corruption, rule of law, etc. Instead of a refined legal scholarship and analysis you would expect of a supreme court the judgment stoops down to an elementary level, say, of a first-year law student.

Lastly, I think this judgment contains an inherent fatal flaw. It’s a well- established principle of judicial review that courts will not render opinions or judgments on laws that have lapsed and have become unenforceable because of their time limitations (e.g. sunset laws) or because of their or obsolete subject matters ( e.g. laws pertaining to slaves). Of course, the courts have the power to declare a law (such as the NRO) that is presently in vogue as being void ab initio, i.e. void at the outset or at its promulgation.

As stated by the Court itself the Parliament had allowed this 120-days Ordinance to lapse and hence the NRO was not a law that was in vogue or in force at the time of the hearing of this case . In para 33, page 53, the judgment concedes “…that the National Assembly did NOT agree to make the NRO 2007 as an Act of Parliament, with retrospective effect, and ultimately it was withdrawn from the Assembly vide letter dated 7th December, 2009.”

The lawyers for the Petitioners wrongly argued that the ” NRO is a bad law ” and the Honorable S.Ct judges wrongly agreed with this assertion because at that time the NRO had lapsed, expired, defunct, kaput, finished, khatum-shud. It ceased to exist as a law. Period. NRO was not a bad law; it was in fact no law at all when the case was being litigated in the S.Ct. I fail to understand why the Honorable Court thought fit to resurrect a dead law in order to rule upon it. The subject matter of this case , the defunct NRO, had become moot and courts do not render advisory opinions on abstract or moot issues.

It is said that the Petitioners and the Honorable S. Court wanted to reverse and nullify the benefits and the harmful effects of this defunct Ordinance, but adjudicating and declaring a dead law as void is not the legal way to go about doing this. There were other ways to do this. …

Courtesy:- CRDP, Fri, 29 Jan 2010

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