A sedulous ruling

The writer is a lawyer based in Islamabad.

The hype around the Supreme Court's detailed judgement in the NRO case is understandable in view of the elevated political temperature in Pakistan, the conspiracy-mongering propensity of Asif Zardari and the aspiration of his detractors to see him pushed out of the Presidency through the judicial process. The only problem with the hullabaloo is that it is not justifiable in view of the text of the judgement.

We have heard wishful interpretations of the judgement claiming that the president has been denuded of his constitutional immunity against prosecution while in office, and that his fate is now in serious legal jeopardy. And we have also heard proponents of the Zardari-led PPP lobbing insinuations that the judiciary might be functioning as the implementing arm of the establishment to oust him, and that such witch-hunt will be fought by the party tooth-and-nail.

While Zardari's opponents and proponents seem to be interpreting the ruling in similar fashion with their respective spins, neither position is supported by what the apex court has actually said in its detailed judgement.

Let us recall that there were two major criticisms against the NRO short order: one, that it was jurisprudentially unsound, given that it relied on Articles 62(f) and 227 of the Constitution in striking down the NRO, that this would open a Pandora's box with eligibility of parliamentarians being questioned for their not being "honest, sagacious and non-profligate," and all kinds of laws being challenged for being un-Islamic; and, two, that it was a politically motivated ruling aimed at creating adverse political consequences for the person of the president. A dispassionate reading of the text of the detailed judgement puts to rest such fears and apprehensions.

The Supreme Court has held that the NRO was in conflict with Article 62(f) as it scuttled the due legal process through which the qualifications of a candidate are to be determined. The Constitution mandates that the corrupt should not be elected as legislators. In the event that there are allegations of corruption, such charges have to be proved or dismissed through the court process.

The NRO simply shut down cases where corruption allegations were being verified by courts, and was unconstitutional as it simply took away the opportunity to determine the eligibility of a public officeholder for purposes of Article 62(f). The court, however, clarifies that this article "cannot be considered self-executory," and only "if a person involved in corruption and corrupt practices has been finally adjudged to be so, then on the basis of such final judgement" can his or her candidature be challenged on the basis of Article 62(f). In short, eligibility of parliamentarians cannot be challenged unless a competent court has convicted them.

Further, in relation to Article 227, the apex court has opined that Article 25 of the Constitution (that guarantees equality between citizens) "has its origins in Quranic injunctions," and thus any law violating Article 25 is also in breach of requirements set out by Article 227. But that "the observations relating to the application of Article 227 and to the morality and conscience of the Constitution are only further supportive observations." And in reiterating the role of the Islamic Ideology Council in declaring whether or not laws are in contravention of Article 227, the court has emphasised that the precepts of Islam and the morality and conscience of the Constitution "cannot be invoked as a matter of course, and certainly not to strike down formal legislation or executive action which is otherwise found to be within the scope of the Constitution and the law."

The ruling in the NRO case has elevated the quality of our constitutional jurisprudence by advancing a textual theory of constitutional morality. The Supreme Court has elaborated that our fundamental law is a living document and that its provisions need to be interpreted in a purposeful manner, in view of the objects of the Constitution -- i.e., its underlying soul, conscience and morality must be provided a legally enforceable formulation in order to actually benefit the people of Pakistan.

But in elaborating the values of our Constitution and giving them effect, the Supreme Court has not been oblivious to its limited role and authority within the constitutional scheme of separation of powers. The decision of the apex court in the PCO Judges Case to afford the parliament an opportunity to approve the Musharraf ordinances (including the NRO) in view of the concept of trichotomy of powers was proof of such realisation.

Further, through the PCO Judges Case as well as the NRO Case, the court has started weaving a doctrine of judicial power that requires purposive constitutional interpretation clubbed together with a considered and cautious exercise of institutional authority in line with the principles of democracy. While this may sound apparently contradictory, the court seems to be suggesting that while it would not shirk its responsibility to interpret and implement provisions of the Constitution to secure the fundamental rights of citizens, it is fully aware of the role and responsibilities of other pillars of the state.

For example, Justice Jawad Khwaja's note in the NRO Case provides an insight into the court's thinking when it states that "the court, while exercising the judicial function entrusted to it by the Constitution, is constrained by the Constitution and must therefore perform its duty in accordance with the dictates of the Constitution and the laws made thereunder.

"If the court veers from this course charted for it and attempts to become the arbiter of what is good or bad for the people, it will inevitably enter the minefield of doctrines such as the law of necessity, with the same disastrous consequences... Decisions as to what is good or bad for the people must be left to the elected representatives of the people, subject only to the limits imposed by the Constitution…

"Legislators and functionaries performing executive functions may resort to expediency, compromise and accommodation in achieving political and policy objectives considered in their judgement. So long as such decisions conform to and are not violative of the Constitution, the executive and the legislature are only accountable to the electorate and not to courts. This is the democratic principle enshrined in the Constitution."

In other words, in propagating its theory of constitutional morality, the Supreme Court is not usurping the functions of other organs of the state or arrogating to itself the right to judge other institutions from a moral standpoint. The court is interpreting the Constitution as a social contract that enables the state and the citizens of this country to order their lives in accordance with the social, moral and ethical values of this society.

But at the same time, it is recognising the fact that the Constitution speaks not merely to the courts, but to all institutions and individuals that comprise Pakistan. To the extent that an individual or institution contravenes the law and the Constitution, the court must step in to uphold the law. But should the representatives of the people in the executive or the parliament frustrate political, social or ethical expectations of the society as opposed to the requirements of law, it is for the people to judge them, and not the court.

The perception that the court is about to skin the leadership of the ruling party (an element being decried by Asif Zardari's proponents and celebrated by his detractors) must therefore be evaluated in view of (i) this unfolding doctrine of democracy, constitutional morality and limited judicial powers, and (ii) the text of the NRO judgement reflecting on provisions of the Constitution that could affect Asif Zardari's eligibility as president, and consequently his incumbency.



(To be concluded)

Email: sattar@post.harvard.edu