NRO Void Ab Initio

By YLH

The Supreme Court of Pakistan has declared the controversial National Reconciliation Ordinance (“NRO”) void ab initio.  This is a historical development in our judicial history from a jurisprudential point of view.

1.  Quoting the Indian precedent of Indira Nehru Gandhi v. Raj Narain   the learned counsel-  Pakistan’s finest in my view-  Salman Akram Raja argued that there could be no “legislative judgment”.    Indian Supreme Court had declared null and void a proposed constitutional amendment introduced by the prime minister that stopped the judiciary from adjudicating on the validity of elections. The prime minister  wanted the executive branch to determine how elections were to be administered in India.   This contention has been accepted by the Pakistan Supreme Court.  Now there may never a legislative judgement and this would have profound jurisprudential consequences.  We will do well now to extend this logic to other issues which need not be repeated here but which have  been discussed on PTH to death.

2.  The court has ruled that this ordinance has been held to be violative of  Article 4 of the constitution :

Right of individuals to be dealt with in accordance with law, etc.

(1) To enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen, wherever he may be, and of every other person for the time being within Pakistan.
(2) In particular :-

(a) no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law;
(b) no person shall be prevented from or be hindered in doing that which is not prohibited by law; and
(c) no person shall be compelled to do that which the law does not require him to do.

3.  The  NRO has been declared violative of Article 8

Laws inconsistent with or in derogation of fundamental rights to be void.

(1) Any law, or any custom or usage having the force of law, in so far as it is inconsistent with the rights conferred by this Chapter, shall, to the extent of such inconsistency, be void.
(2) The State shall not make any law which takes away or abridges the rights so conferred and any law made in contravention of this clause shall, to the extent of such contravention, be void.
(3) The provisions of this Article shall not apply to :-

(a) any law relating to members of the Armed Forces, or of the police or of such other forces as are charged with the maintenance of public order, for the purpose of ensuring the proper discharge of their duties or the maintenance of discipline among them; or
[7]
(b) any of the

(i) laws specified in the First Schedule as in force immediately before the commencing day or as amended by any of the laws specified in that Schedule;
(ii) other laws specified in Part I of the First Schedule;

and no such law nor any provision thereof shall be void on the ground that such law or provision is inconsistent with, or repugnant to, any provision of this Chapter.

(4) Notwithstanding anything contained in paragraph (b) of clause (3), within a period of two years from the commencing day, the appropriate Legislature shall bring the laws specified in [8][Part II of the First Schedule] into conformity with the rights conferred by this Chapter:

Provided that the appropriate Legislature may by resolution extend the said period of two years by a period not exceeding six months.

Explanation :- If in respect of any law [9][Majlis-e-Shoora (Parliament)] is the appropriate Legislature, such resolution shall be a resolution of the National Assembly.

(5) The rights conferred by this Chapter shall not be suspended except as expressly provided by the Constitution.
 

4.    NRO is violative of Article 25

25. Equality of citizens.

(1) All citizens are equal before law and are entitled to equal protection of law.
(2) There shall be no discrimination on the basis of sex alone.
(3) Nothing in this Article shall prevent the State from making any special provision for the protection of women and children.

5.   The NRO is violative of Article 62(f)

Qualifications for membership of Majlis-e-Shoora (Parliament).

A person shall not be qualified to be elected or chosen as a member of Majlis-e-Shoora (Parliament) unless :-
  (f) he is sagacious, righteous and non-profligate and honest and ameen;

6.  NRO is violative of Article 63 1 (p)

Disqualifications for membership of Majlis-e-Shoora (Parliament).

(1) A person shall be disqualified from being elected or chosen as, and from being, a member of the Majlis-e-Shoora (Parliament), if:-  [(p) he has been convicted and sentenced to imprisonment for having absconded by a competent court under any law for the time being in force; or        

7.  NRO is violative of Article 175 of the constitution

175. Establishment and Jurisdiction of Courts.
(1) There shall be a Supreme Court of Pakistan, a High Court for each Province and such other courts as may be established by law. 
(2) No court shall have any jurisdiction save as is or may be conferred on it by the Constitution or by or under any law. 
(3) The Judiciary shall be separated progressively from the Executive within [159] [fourteen] years from the commencing day.

 

 8.   NRO is violative of Article 227 of the constitution

227. Provisions relating to the Holy Qur’an and Sunnah.
(1) All existing laws shall be brought in conformity with the Injunctions of Islam as laid down in the Holy Quran and Sunnah, in this Part referred to as the Injunctions of Islam, and no law shall be enacted which is repugnant to such Injunctions.[242] [Explanation:- In the application of this clause to the personal law of any Muslim sect, the expression “Quran and Sunnah” shall mean the Quran and Sunnah as interpreted by that sect.]
(2) Effect shall be given to the provisions of clause (1) only in the manner provided in this Part. 
(3) Nothing in this Part shall affect the personal laws of non- Muslim citizens or their status as citizens.

Analysis:

This judgement lays down and reaffirms the following:

1.  Equality of citizenship is supreme. 

2.  No class of people can be elevated or protected from law which shall apply equally to every citizen.  Every class regardless of religion, caste, status, financial status etc shall enjoy similar or no immunities.  

3.  The Parliament may not tread upon the jurisdiction of the judiciary through legislative judgements passed from within the legislature.

4.   Any laws which are not in conformity with Quran and Sunnah are to be struck down provided such an act shall not affect Non-muslims’ rights as citizens.

Fundamentally – this historical judgment which shall be quoted as precedent for many years to come regardless of its political fallout.   Will it create the fundamental balance required for the federation of Pakistan based on democratic norms and equality of citizenship is yet to be seen.  What is to be the future of President Zardari?  Of particular concern should be 63 1 (p) which can amount to a challenge despite presidential immunity.     Article 41 of the constitution puts a stop to all proceedings calling into question the election of the president but what if President Zardari was ineligible to hold office in the first place (bear in mind that president is subject to articles 62 and 63).  

There is some concern shown by international opinion makers and journalists that this verdict might cause instability and prove to be a boon for the Taliban.   I am afraid this is a very naive view to take.   The populace’s faith in constitutional democratic process can only weaken the Taliban and not strengthen them.  

As we peel the layers of this onion we must also realize that an unprecedented new situation has been created. Pakistan’s steelframe i.e.  its military and civil bureaucracy now find it expedient to support the constitutional parliamentary democratic form for its best suits them under the circumstances.   The fears of a “coup” are misplaced and overstated.   There will be no direct coup by the military.  It will continue however to be a player in the grand scheme.

18 Comments

Filed under Law, lawyers movement, Pakistan, Politics

18 responses to “NRO Void Ab Initio

  1. Majumdar

    What is the implication of this judgement on AZ’s Presidency? Does this mean that since AZ had cases pending against him he was not entitled to run for Presidency and thus his election can be set aside without any further judgements? Or does this mean that if and only if AZ is convicted (not merely charged) that he can be disqualified.

    Apart from this, I am curious about a few things:

    unless he is sagacious, righteous and non-profligate and honest and ameen;

    How is it to be determined how someone is all the above?

    How is NRO violative of the Sunnah and the Holy Quran?

    Regards

  2. yasserlatifhamdani

    Majumdar,

    You write:

    “unless he is sagacious, righteous and non-profligate and honest and ameen;

    How is it to be determined how someone is all the above?”

    Ans: Innocent till proven guilty.

    “How is NRO violative of the Sunnah and the Holy Quran?”

    Ans: The argument is that NRO is unIslamic because it promotes corruption.

    “AZ had cases pending against him he was not entitled to run for Presidency and thus his election can be set aside without any further judgements? Or does this mean that if and only if AZ is convicted (not merely charged) that he can be disqualified.”

    Ostensibly the argument would be… that Zardari was convicted as an absconder and not eligible to hold office under article 63-1-b.

  3. Majumdar

    In that case, I guess AZ’s election cud be automatically held null and void. So wud the runner-up of the last election be sworn in as Prez or wud it require another election.

    What about the election of the other MNAs/MPAs/Senators etc. Cud there be a mass disqualification of some of these who have been named in NRO?

    The implications cud be interesting, no?

    Regards

  4. yasserlatifhamdani

    Yes very interesting….

    “Bey-daad puranay” are about to fall.

  5. Majumdar

    You reckon someone will move the SC to set aside AZ’s election?

    What wud be AZ’s options then? Will he play the ethnic card?

    Regards

  6. yasserlatifhamdani

    Ofcourse he will play the ethnic card… not sure how successfully though…

  7. Hayyer

    I hope that this re-discovered judicial fervour does not create opportunities for the army.

  8. yasserlatifhamdani

    It won’t. It actually closes the door for directly military intervention.

  9. Bloody Civilian

    It actually closes the door for directly military intervention

    it closes the door on the military directly coming into disrepute as it does after a few years of every ‘front-stage’ dictatorship. it avoids the unintended personalisation of what has ever been and intended to be an institutional dictatorship. it allows it to have all the power without having to ever face the music: neither in the public nor legal court.

    not sure how successfully though

    can we really afford to find out?

  10. lalded

    Any connection with todays corps commdrs meet.?.They discussed the weather? hm.

  11. stuka

    How is the poiltical temperature? Esp in Karachi?

    I dunno, from where I sit, it seems to be an ungal specifically to PPP. Nawaz Sharif got acquitted in hijacking case. No corruption case against him either. All the leading lights of the PPP got targetted though.

    Agreed that Zardari is corrupt but the way this has been handled smacks of political expediency. Also, someone mentioned that Zardari was on trial for eight years before this very CJ and the CJ did not have the fortitude to convict him?

  12. yasserlatifhamdani

    When did that happen stuka?

    I am no NS fan …but the hijacking case was bogus.

    The issue is of a bad law and not Zardari in particular.

  13. hoss

    In 2007, I wrote an article warning Benazir (she was alive then) that she needs to be careful. The system is not ready to accept the PPP yet. I, instead, proposed that she let Nawaz Sharif take the first round. (Benazir and Sharif signed a deal in London in 2007 where they agreed that PPP would lead the country for the first five years.) The way the events are unfolding now, it is clear that the system basically has refused to work with the PPP. I think Benazir had plenty of chances to survive this crisis but poor Zardari has no chance whatsoever.

    There are many reasons for that. People in Pakistan liked Benazir; she was not corrupt and generally was trustworthy. She had an impeccable record of fighting for the civilian rule. (That is besides the point that she always tried to cut a deal with the army) Zardari lacks these qualities and it would be hard for him to mobilize public support in his favor. He can look to the PPP base in Sindh for help but the reality is that Zardari was never a popular person in Sindh. After coming in to power he made the deal with the MQM and he could not find a single Sindhi in his party to support that. He needed to take the heat in Karachi from the MQM to solidify his position in both Punjab and Interior Sindh. At that time MQM was a hated party due to its role on May 12, 2007.

    I was in Pakistan during the Feb 2008 elections. I met one bigwig of the PPP in Karachi and he told me that the deal was to have a coalition of PPP, MQM and PML(q) to form the government. I told him Zardari might have accepted this deal before the elections but he is not going to stick with that because if he does, he would be toast in Sindh. Well, he ditched the PML(q) but still ended up with the MQM. His deal with MQM forced Nawaz to leave the coalition.

    Sindh grudgingly accepted the deal with the MQM because Sindhis wanted the things to work and they felt that MQM would have made things difficult in two major cities of Sindh. But Zardari did not capitalize on the reprieve he got in Sindh. The PPP in Sindh utterly failed to deliver anything. Sindhis were denied the job market in Karachi by the MQM for the last ten years; they expected that market to open. That did not happen. The only job the PPP opened was that of primary school teachers. That simply was not enough.

    At this moment the PPP is in a bind. Its ministers can’t leave the country and Zardari needs to clear his name before he can even begin to respond to the political fall out.

    I wanna make it clear that there is no way the army or anyone else can force him to leave the President House. That is just not going to happen. They want him to just accept the constitutional role and Zardari might just do that. Actually he should have done that a while ago, when he was forced to restore the judiciary. That is another matter that he might not live with the constitutional role and resigns.

    The deal the Benazir cut with the army in July 2007 was that she or her nominee would get the premiership but the army representative-Musharaff at that time- would have the presidency. Musharaff finally lost power because Nawaz Sharif was not ready to work with him. You see the Judiciary, had it been restored in March 2008, would have gone after Musharaff with vengeance but the Army and Zardari protected Musharaff. So Zardari became the first target of the Judiciary.

    As I see it the Judiciary and its political allies have Musharraf and the Army as their next target. I don’t know but I think the curtain would fall on the army before 2013.

  14. Gorki

    “The issue is of a bad law and not Zardari in particular”

    YLH.
    Congratulations on your country taking the right step. It is a first step maybe even a small step but a step that makes the institution a little bit stronger.

    Rather than looking at personalities as winners and losers, it is time mature commentators understand that any time the rule of law is upheld, it is a victory for the Republic of Pakistan.
    The clear winners today are the people of Pakistan.

    Regards.

  15. takhalus

    looks like Ifti is pushing things towards a confrontation. He could have easily struck down the NRO and left the restt to the govt.

    Looks like a hatchet job against the PPP and Ifti is playing into the establishments hands.

  16. yasserlatifhamdani

    The CJP has created monitoring cells that shall ensure justice be done in the 8000+ cases that will now be taken up.

    I don’t accept this view of establishment/hatchet job etc etc. It is purely legal issue. Stop making it a political one.

    And let us not forget that the federation tried to argue that very line in the court and then withdrew the same argument.

  17. bushra naqi

    The NRO has been annulled, and now where do we proceed from here? Does the country head towards restoration and strengthening of institutions or demolishing of whatever remains?

    One pillar of the state, the judiciary, has been strengthened but what of the executive and the legislature. Their credibility, their reputation their veracity is sorely under question. The fourth pillar of the state, the army has salvaged its image but is still controversial, as far as its power structure is concerned. People still question its intentions.

    In the backdrop of a very crucial war on terror being fought in the north, the situation is very precarious. There is an attempt to reduce those at the helm of affairs to tatters. How will they function or deliver results.Will they survive the crisis or plunge the country into disarray?

    Sometimes the end justifies the m,eans. The looming question here is will it? With a reckless media playing havoc there seems to be little hope of managing a very critical situation in a very prudent and circumspect manner, which is the need of the hour….

  18. Bloody Civilian

    @Bushra

    I too share your aprehensions. but i cannot call a right step wrong. the politicians will have to stand up for themselves. show their mettle. that’s how it is.

    the informal fourth pillar of the state is the media, not the army. the army is the fence or the boundary wall. the media, in my view too, is trangressing into carrying out a media trial. it is legitimate for the media to delve into the details of the charge sheets, but not the kind of specualtion and ‘guilty until proven innocent’ stance that many in the media have taken.

    if the politicians can do what politicians are supposed to do, engage with the people directly, they can cut both the media and establishment down to size. they don’t need any great unity amongst them either. healthy competition will be a good thing as long as it is about who delivers her message better and convinces more people of their pov. the politicians need to stop trying to reach the people through the media. that’s lazy politics.