Another aspect of the judgment

By Asma Jahangir        Dawn 19 Dec, 2009 

 The NRO case, Dr Mubashar Hasan and others versus the federation, has once again stirred a hornet’s nest.

There is thunderous applause for bringing the accused plunderers and criminals to justice and widespread speculation on the resignation of the president. Very little analysis is being done on the overall effect of the judgment itself.

While, the NRO can never be defended even on the plea of keeping the system intact, the Supreme Court judgment has wider political implications. It may not, in the long run, uproot corruption from Pakistan but will make the apex court highly controversial.

Witch-hunts, rather than the impartial administration of justice, will keep the public amused. The norms of justice will be judged by the level of humiliation meted out to the wrongdoers, rather than strengthening institutions capable of protecting the rights of the people.

There is no doubt that impunity for corruption and violence under the cover of politics and religion has demoralised the people, fragmented society and taken several lives. It needs to be addressed but through consistency, without applying different standards, and by scrupulously respecting the dichotomy of powers within statecraft. In this respect the fine lines of the judgment do not bode well.

The lawyers’ movement and indeed the judiciary itself has often lamented that the theory of separation of powers between the judiciary, the legislature and the executive has not been respected. The NRO judgment has disturbed the equilibrium by creating an imbalance in favour of the judiciary.

The judgment has also sanctified the constitutional provisions of a dictator that placed a sword over the heads of the parliamentarians. Moreover, it has used the principle of ‘closed and past transactions’ selectively.

It is not easy to comprehend the logic of the Supreme Court that in a previous judgment it went beyond its jurisdiction to grant life to ordinances — including the NRO — protected by Musharraf’s emergency to give an opportunity to parliament to enact them into law.

If the NRO was violative of fundamental rights and illegal ab initio, then whether the parliament enacted it or not it would have eventually been struck down. By affording parliament an opportunity to own up to the NRO appears to be a jeering gesture unbecoming of judicial propriety.

The NRO judgment has struck down the law also for being violative of Article 62(f), which requires a member of parliament to be, ‘Sagacious, righteous and non-profligate and honest and ameen’.

Hence, the bench will now judge the moral standing of parliamentarians on these stringent standards set by the notorious Zia regime. This article of the constitution has always been considered undemocratic and a tool to keep members of parliament insecure.

If parliamentarians, who also go through the rigorous test of contesting elections in the public domain, are to be subjected to such exacting moral standards then the scrutiny of judges should be higher still.

After all, judges are selected purely on the value of their integrity and skills. Judges who erred in the past seek understanding on the plea that they subsequently suffered and have made amends. Should others also not be given the same opportunity to turn over a new leaf? How will sagacity and non-profligate behaviour be judged?

Apart from Dr Mubashar Hasan, not even the petitioners of the NRO case are likely to pass the strenuous test laid down in Article 62 of the constitution. This could well beg the question whether it is wise for those in glass houses to be pelting stones.The judgment goes much further. It has assumed a monitoring rather than a supervisory role over NAB cases. In India, the supreme court directly interfered in the Gujarat massacre but it did not make monitoring cells within the superior courts.

Is it the function of the superior courts to sanctify the infamous NAB ordinance, the mechanism itself and to restructure it with people of their liking? It is true that the public has greater trust in the judiciary than in any other institution of the state, but that neither justifies encroachment on the powers of the executive or legislature nor does it assist in keeping an impartial image of the judiciary.

The long-term effects of the judgment could also be counter-productive; perpetrators are often viewed as victims if justice is not applied in an even-handed manner and if administered in undue haste with overwhelming zeal. It is therefore best to let the various intuitions of state take up their respective responsibilities because eventually it is the people who are the final arbiters of everyone’s performance.

The writer is chairperson of the Human Rights Commission of Pakistan.

8 Comments

Filed under Democracy, Justice, Law, lawyers movement, Pakistan, Parliament, state

8 responses to “Another aspect of the judgment

  1. YLH

    Ms. Jahangir,

    Well then what is stopping the parliament from striking down Article 62-f?

    Let us not mix and mangle issues here. Pakistan’s constitution needs to be amended and purged off of 8th amendment to the extend of Islamization.

    It is enough that the NRO violated 4 and 25. 62-f and 227 were superfluous. But that can’t take away from the legality of the judgment.

  2. YLH

    Erratum “extent”

  3. PM

    Seems like AG has problem with rule of law and accountability. Whatever bad consequences are there should be brought before the parliament. I see more of a problem in prosecution (conflict of interest) with current executive.

  4. Jalal Ahmad

    Agree with YLH on mixing the issues. NRO has nothing to do with eligibility of a person to contest elections nor does it stop parliament from striking down the article 62. Never before has any member of parliament been disqualified on the basis of article 62. In Junejo government when one MNA was accused of drinking alcohol (hence not ameen) the whole assembly stood with that MNA.
    If wrong doers feel they have been humiliated for not getting impunity on the basis of NRO then be it. I don’t think public can be denied the right to draw pleasure from seeing those who looted and plundered their tax money “worried and humiliated”. For public is humiliated day in day out for ataa, cheeni and anything in their use.

  5. Bloody Civilian

    @Jalal Ahmad

    the SC is not the people of pakistan. it is not dealing with those “who looted and plundered their tax money”. it cannot presume guilt as a lay person can. it has strict boundaries, as does the executive, and must stay within it.

  6. bushra naqi

    The serious undermining of the executive and legislature are definitely going to have short and long term repercussions. These govern the country and not the judiciary so their functioning is going to be severely impacted. With the country facing critical problems of terrorism, war, economy etc. all these will be sidelined to a state of neglect and lack of focus. With a parliament desperately trying to save its reputation and credibility they will hardly be productive.

    Again we are only obsessed with individuals and forgetting that when we destroy individuals who are actually representative of, and symbolic of these insitutions,we do damage to the system as well. Will this fragile democracy survive when we have put the cart before the horse, as the SC judgement has done? After all nothing can exist in isolation, not even a judgement.
    This damage will not be healed easily

  7. YLH

    I think no executive or legislature has been undermined or bulldozed.

    I have been a PPP supporter and even a Zardari supporter in the past… but the court judgment is legally sound and constitutionally the right thing to do.

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