I guess everything is still blank!
@ Degas
Please read this article written by argueably the best lawyer in Pakistan regarding the NRO judgment, may be it will clear your mind from the misconceptions you are carrying:
Misconceived flaws in NRO ruling
Thursday, January 28, 2010
Viewpoint
By Babar Sattar
The legal reasoning of judges is neither infallible nor sacrosanct. But we have thankfully graduating from the dark ages of decrying the personal integrity of judges to questioning the merit of their legal arguments. And exposing judicial verdicts to piercing scrutiny bodes well for the future of our jurisprudence. While the NRO judgment has been widely celebrated, it has its fair share of critics as well. And when a lawyer as eminent and forthright as Asma Jehangir criticises the ruling, her arguments need to be analysed dispassionately.
There seem to be two fundamental criticisms being hurled at the NRO ruling: one, that it is a bad precedent because the court has emphasised the ‘morality and conscience’ of the Constitution, and brought back to life the legacy of a dictator by its focus on Articles 62 and 63, which should just be ignored; and two, that the court is guilty of political bias because the judgment seems to be wagging its finger at President Zardari. The first argument seems partly misconceived and partly self-contradictory, and the second largely without substance if one focuses on the text of the ruling as opposed to perceptions built around the whole NRO drama.
The first argument is misconceived because it blames the court for embroiling morality with religiosity in an impermissible manner. Many of us rightfully have an aversion to judicial rulings being rooted in morality rather than law. But that does not mean that a law does not have a morality of its own, for concepts of justice, equality and equity that provide the foundation for just laws are fundamentally moral concepts. Thus while courts responsible for interpreting the Constitution possess the mandate to elaborate the morality and conscience imbedded in the provisions of the Constitution, they have no mandate to allow their personal morality to interfere with constitutional interpretation.
**It is therefore crucial to distinguish between personal morality of judges and the morality infused into the Constitution by makers of the Constitution. It is fair to argue that Article 2A and portions of Article 62 and 63 that were inserted into the Constitution by General Zia-ul-Haq have polluted our fundamental law and need to be expunged. But these provisions were neither written into the Constitution by judges, nor can be excluded by them. Notwithstanding their illegitimate conception, they have survived for over two and a half decades and the tenures of many representative assemblies. **
Articles 2, 2A, 62, 63 and 227 might be the cause of unhealthy injection of religion into the fundamental law of our country, which has a 96 percent Muslim population and does not need to be ‘Islamised’ any further through laws. We could do away with some of these provisions and still emerge into a healthier and more tolerant Muslim state. But such desirable agenda for constitutional reform falls into the domain of political parties and the legislature and cannot be spearheaded or implemented by courts.
Even today there is a constitutional committee of parliament in session mulling over the content of the 18th Constitutional Amendment. But we are yet to hear that PPP - our ruling mainstream liberal party - is campaigning to rid the Constitution of Zia’s deformities. **Encouraging courts to bury the ‘legacy of the dictator’ and understate Constitutional provisions that are a product of such legacy makes for a self-contradictory argument. How can the courts be granted the authority to pick and choose between desirable constitutional provisions that must be applied with full-force and others that are to be ignored? **
Such constitutional interpretation is only possible if we agree in principle that judges are allowed to inject their personal morality into law. And if as a consequence of liberal morality they elect to ignore Zia-inspired religion-based provisions while interpreting the Constitution today, what will ensure that a different set of religion-inspired judges comprising the court tomorrow will not overstate such provisions?
Selective enforcement of Constitutional provisions is not an authority vested in the judicature and it must never be. Further it is being argued that if courts are ignoring legal provisions requiring grant of punishments such as flogging etc., in view of our social sensibilities, why can’t the same approach be applied to Articles 62 and 63. This again is a flawed argument for it is encouraging the courts to make compromises of principle in applying the law, as opposed to requiring the legislature to make different policy choices. Courts must apply the law on the statute books in letter and spirit. That is the only way to ensure that the justice system has integrity and on the whole speaks coherently with one voice.
Advocating selective judicial enforcement of questionable laws as a matter to policy to overcome delays in reform due to divided public opinion over the role of religion in our policy is neither advisable nor sustainable. It is not for the courts to function as a gauge of public opinion or public welfare and give it effect through their judgments. The entire scheme of any democratic system is contingent on elected legislators representing aspirations of the people, and courts meticulously giving effect to such aspirations that acquire the form of law promulgated by the legislature within constitutional bounds.
The second criticism of the NRO ruling is that it is afflicted with political bias. There are three sub-strands of this argument. First, the ruling is person-specific (i.e. Zardari focused) and not rooted in the principle of neutrality and non-partisanship that the apex court must abide by. Such claim springs from the fact that the ruling is perceived as affecting the fortunes and future of President Zardari. It is weak on substance because it doesn’t take into account the fact that President Zardari was a prime beneficiary of the loathsome NRO.
Once the court strikes down a law as unconstitutional, such ruling will inevitably impact the beneficiaries of such law disproportionately in comparison to other political actors who were not meant to benefit from such law. This in itself doesn’t make the ruling politically biased. It has been no one’s case that the NRO should have been declared valid law by the court. Should the court then have invalidated such law, but rendered such invalidation meaningless by protecting the benefits derived under it by various individuals to claim non-partisanship? If a law states that thieves shall be punished and members of one faction exhibit the propensity to indulge in acts of theft, can we claim that the law is discriminatory against such faction?
The second sub-strand of this criticism, not very boldly articulated, is that the NRO was a necessary evil for it opened up a window of opportunity for democracy to return to Pakistan and chase General Musharraf out of power. The criticism then is that the court should have taken note of our recent history and the positive effect of the NRO and not necessarily its invidious intent. This argument is again flawed for it is contingent on the logic that desirable ends justify rotten means. Pakistan has been the victim of politically expedient deals that are marred by illegitimacy. And we have been criticizing our courts for their shameful acquiescence in such extraneous considerations of expediency. Let us make up our minds if we wish courts to strictly apply the principles of law or bend in whatever direction the wind is blowing.
And finally, there is a sense of resentment over the court with a murky past assuming a righteous mantle and calling others to order. This criticism completely ignores the role of the rule of movement in resurrecting an independent-minded judiciary and endowing it with the ability to break from its past. Pakistan and its institutions have a checkered history and a questionable past that cannot be undone. Our hope and optimism as a nation can only spring from our ability to learn from the past and build a different future. But if we simply disallow an institution to take corrective measures because it made compromises in the past, what is the recipe for change that we support?
The judiciary is attempting to turn a new leaf. But such change will be incremental and will need our support. During this transitional phase, our judges will make mistakes too. We have a right to criticize their legal reasoning and the outcome of cases where we find the court’s rulings unpersuasive. But such criticism must be based on the text of their rulings and not shared gossip about their sympathies and biases.
Dekthey hain kab aur kaisey. He failed to perform, not that he was meant to perform in the first place.