Our constitutional and moral foundations

The Supreme Court verdict on the NRO, on December 16, provided the nation with the much-needed catharsis to emphasise Pakistans Constitutional and Islamic foundations. Perhaps jurisprudentially, as Lord Devlin says of the Christian societal values vis--vis the development of human rights in the western world, it is the reaffirmation of the moral foundations of Pakistan itself. However, one cannot deny that some quarters are not happy with what the court has done. They are basically the same elements that did not want the restoration of the present Supreme Court (SC). In any debate on the place of this unholy piece of legislation of a dictators follies or the role of the present SC in the sociological evolution of this nations current metamorphosis, the following facts need to be kept in mind: * Despite the fact that the federation and all the provinces through their lawyers jointly consented to the repeal of NRO; none came to rescue the beneficiaries who got the windfall out of this highly immoral gesture of a dictator demonstrably aimed to achieve his personal political longevity. * After its submission to Parliament for enactment as a statute but then convinced and fearful that the same be rejected as a bad law by 342 members of Parliament, the federal authorities of the current regime made a hasty retreat; this notorious bill was withdrawn by the PM in a speech to the assembly on November 03. Followed by his minister of parliamentary affairs formal request to do so to the speaker under Rule 139 of Procedural Rules of the assembly on November 08, 2009. * It is beyond the slightest doubt that this ordinance was the outcome of intense parleys conducted in Dubai and London between Benazir and Musharraf in which both the US and UK were also indirectly involved. Any court of 'law while ruling on these facts could come to the only conclusion as rightly reached by the Supreme Court in this matter. The current critiques of the courts short order are, as expected, from those in the government or who are going to be conceivably hit by this judgment or those who are closely allied to the ruling federal regime. I think wise counsel would be to ignore such prevarications; however since some writings have used phraseology which touches far-reaching matters connected with the very moral basis of the State of Pakistan and of its institutions particularly the SC, some response is needed to be provided to such utterly illogical and superficially justifiable legal extravaganzas with little learning in substantive constitutionalism Amongst such critiques are objections that there has been a judicial coup in Pakistan as judgments are being produced which may result in witch-hunts, rather than the impartial administration of justice. The object of such witch-hunts, as alleged picturesquely by one such commentator, is not difficult to locate; there is abundant evidence on that point about who the chief intended beneficiary of this ordinance was and consequently what needs to be corrected by the law. As the prime beneficiary of such legal manoeuvres was the current president of the country, the court could hardly abdicate its due process responsibilities, demanded ex debitio justitae by constitutionalism and the moral basis of the existence of Pakistan, Islam. The court ordered: The NRO is declared to be an instrument void ab initio being ultra vires and violative of various constitutional provisions including Article Nos 4, 8, 25, 62(f), 63(i)(p), 89, 175 and 227 of the constitution. Then who can possibly question that the 'NRO is not a bad law? Can one question that all are equal in the eyes of law and there cannot be two different treatments to the one who is serving sentence and the second getting pardon on a juridical criterion having no basis in law? A few labelled as human rights experts, are objecting to the rejection of the NRO on some Islamic clauses, especially, Article 62 (1) (f) which expects a member of Parliament to be a sagacious, righteous and that former convicts may not be elected; but surely that is for Parliament to judge whether the people wish to retain such clauses or not, but whilst these clauses are in the constitution and statute books the SC has every right, indeed a 'national duty, to adjudicate on the basis of their presence a law which may bring arbitrary benefits to those undesired by the constitution. Unfortunately, none picked an issue in Parliament for its failure to reject or select this ordinance. Why are they now making all this fuss? This criticism is not only perversely unconstitutional in approach but it negates the very moral foundations which led to the creation of Pakistan. To conclude on a lighter note, the senior lawyer on behalf of Dr Mubashir, had also been the senior counsel in defending Musharrafs general policies when these cases were filed on October 08, 2007; had these matters come up as ordered by the court in three weeks at that time, would he have been available at that time to argue as passionately as was done by him in 2009? The writer is a senior advocate of the Supreme Court, Pakistan

The writer is barrister at law (US and UK), senior advocate of the Supreme Court of Pakistan and professor at Harvard University.

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