The Supreme Court’s anti-NRO judgment was hailed across the country. But it has now attracted a crop of bipartisan critics. The controversy rages around constitutional Articles 62(f), 63(i), 63(p), 89 and 227 on which the judgment is mainly pegged.
Article 62(f) requires members of parliament to be “sagacious, righteous and non-profligate and honest and ameen”. Article 63(i) and 63(p) relate to grounds of “misconduct and moral turpitude” and “conviction in absentia for being an absconder” for disqualification from parliament. Article 227 is about bringing laws “in conformity with the Injunctions of Islam as laid down in the Holy Quran and Sunnah”. It says that “no law shall be enacted which is repugnant to such Injunctions”. Article 89 is about the powers of the President to promulgate Ordinances.
Is the SC under CJP Iftikhar Mohammad Chaudhry about to overthrow landmark judgments of the SC under CJP Justice Mohammad Afzal Zullah (Hakim Khan case in 1992) and CJP Justice Nasim Hasan Shah (Kaneez Fatima case in 1993)? These judgments declared that no constitutional or statutory provision may be struck down by any court on the ground that it may violate an injunction of Islam. They held that the status of the Objectives Resolution had undergone no change and it remained a historic statement of purpose for the first constituent assembly in 1949 despite its inclusion as a substantive part of the Constitution later under General Zia ul Haq. They also held that judicial review of any legislation on the ground of repugnance to the injunctions of Islam could only be carried out by the Federal Shariat Court and that the FSC could only make pronouncements with prospective effect and could not declare any law void ab initio. Further, that Article 227 should be read as an instruction to parliament (on the recommendations of the Islamic Ideology Council) and not as a basis for judicial review by the courts.
A lengthy articulation of the “immoral politics” of the NRO took place in the SC last week during the hearings, some of it based on a reading by petitioner Hafeez Pirzada of extracts from recent books by Benazir Bhutto and the American journalist Ron Suskind. This was bewildering since there was no discussion in the court of any possible role of Article 227 in the case at hand.
More significantly, the SC under CJP Chaudhry seems to going much further by relying on the Basic or Salient Features Doctrine (that says that Parliament cannot amend the constitution in any manner that changes the Basic Features of the Constitution) to declare the NRO as unconstitutional because it ostensibly alters the Basic Features of the 1973 Constitution. This is remarkable considering that the SC in 1997 (Mahmood Khan Achakzai case) had declared that even General Zia ul Haq’s 8th Amendment had not altered the Basic Features of the Constitution! In the NRO case, the SC seems to additionally imply that Islam is a part of the Basic Structure of the Constitution and the NRO is repugnant to the injunctions of Islam! The anarchy that may result from this judgment would flow from the stated provision of article 227 that the Islamic provisions are to be applied in accordance with the teachings of each and every Islamic sect. So two questions arise: will the courts henceforth strike down legislation on the ground that it fails to accommodate the teachings of any sect? Will the courts henceforth determine which sect is legitimate for its purpose of interpretation of the legislation and which is not?
The SC will now be faced with other relevant questions: if the NRO is discriminatory and immoral, what is the status of bank loan write-offs and defaults of businessmen and politicians since independence? Indeed, what is the status of the immoral and discriminatory grant of perks, privileges and plots by various governments to its supporters? What is the status of Air Marshal (retd) Asghar Khan’s 17 year old petition in the SC indicting the ISI and various PML politicians of illegal gratification and acquisition of funds? And so on. Questions may also be raised about the constitutional validity of the various reprieves and general amnesties ordered by different governments for political reasons.
The SC has ordered the State Bank of Pakistan to furnish lists of all loan defaults and write-offs since 1971 amounting to hundreds of billions of rupees from all banks in the private and public sector. But how will the SC proceed in this matter? Does it have the expertise to determine in each and every case which was an immoral and crooked write-off and which was a legitimate default? What about obtaining lists of all the plots of land allotted by various governments to thousands of bureaucrats, judges, soldiers, journalists and politicians and inquiring into their legitimacy and Islamic morality?
We await the SC’s detailed judgment with bated breath and humility. If the SC buries the NRO without creating legal or administrative anarchy and gridlock, thereby destabilizing the system, the court will justly deserve the kudos lavished upon it. But if it doesn’t, then these 17 judges will go down in history as the fundamental cause of Pakistan’s meltdown.