Article 227 and the NRO verdict short order
Here is article 227 of the Pakistani constitution:
227. Provisions relating to the Holy Qur’an and Sunnah.
(1) All existing laws shall be brought in conformity with the Injunctions of Islam as laid down in the Holy Quran and Sunnah, in this Part referred to as the Injunctions of Islam, and no law shall be enacted which is repugnant to such Injunctions.[242] [Explanation:- In the application of this clause to the personal law of any Muslim sect, the expression “Quran and Sunnah” shall mean the Quran and Sunnah as interpreted by that sect.]
(2) Effect shall be given to the provisions of clause (1) only in the manner provided in this Part.
(3) Nothing in this Part shall affect the personal laws of non- Muslim citizens or their status as citizens.
The “Part” referred to in Article 227(2) is Part IX of the constitution . Part IX describes the procedure for the Council of Islamic Ideology to decide whether or not a proposed law is repugnant to the injunctions of Islam. Part IX does not describe the manner in which any other institution could go about deciding a law is repugnant to the injunctions of Islam via article 227(1). So what article 227(2) does is limit the scope of article 227(1) to the Council of Islamic Ideology.
In the NRO verdict short order, article 227 is mentioned as follows:
(i) that 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;
Since the Supreme Court bench is not the Council of Islamic Ideology, by referring to article 227 when striking down the NRO in its short order, it is going against article 227(2).
As pointed out by Monsoon Frog:
However, the same article also provides that clause (1) of Article 227 shall only be given effect through referral of a matter to the Council of Islamic Ideology, which in turn is only empowered to give an advisory opinion.
So to my non-lawyerly mind it seems rather clear that the short order has essentially widened the scope of Article 227(1) beyond its constitutional limits as described in Article 227(2).
The position as far as a lay writer can understand is this: the power to strike down a law for being repugnant to Islamic injunctions lies with the Federal Shariat Court and no other court. Article 227 only allows the Council of Islamic Ideology to recommend changes in laws on the ground of repugnancy to Islam. The article does not empower any forum to strike down any law. When 17 judges of the highest court invest Article 227 with the power to nullify a law it could amount to constitution-making.
I am grateful to the two writers above for bringing to attention this aspect of the short order. As far as I can tell they appear to be the only two legal experts who have described this contradiction and its troubling implications. Babar Sattar, in his column, while discussing the mention of article 227 in the short order, omits any mention of article 227(2).
It’s interesting and sad that an aspect of the short order with such potentially far-reaching consequences regarding the future use of the Islamic provisions of the constitution by our courts has gone almost undiscussed in both the Pakistani and the foreign press.
It appears that Asma Jahangir too noticed this issue in her critique of the NRO verdict. This concern was not recorded in her article in Dawn http://criticalppp.com/archives/3041 but she raised this point in her TV appearances.
A fellow blogger at pkpolitics offered an excellent summary of Asma Jahnagir’s key concerns about the NRO verdict, based on:
Quote
Asma Jahangir’s arguments are (from Another aspect of the judgment – Dawn 17 Dec, Dunya Today – 19 Dec, Policy Matters – 17 Dec, Off the Record – 21 Dec):
1. On Article 62(f):
The article states “…a person shall not be qualified to be elected or chosen as a member of Majlis-e-Shoora (Parliament) unless he is sagacious, righteous and non-profligate and honest and ameen; An article clearly intended for misuse and abuse against the political class, inserted into the constitution by Zia to keep the political class under leash. The sagacious, righteous, non-profligate, ameen etc., applies to members of parliament only – no other type of public office (which should clearly delineate to any intelligent person the intent of the article).
This article is meant for interfering with, and manipulating the democratic process. And now, by making this article a touchstone to strike down the NRO, the judiciary is not only validating and providing sanctity to a controversial article which has never before been used in any judgment, but is also laying the groundwork for measuring parliamentarians by it. That is, the court is assuming the power to judge ‘character’ of parliamentarians.
Parliamentarians already go through the test of polls, and if they are to be verified by the judiciary as sagacious, ameen etc., then standards for the judiciary should either be the same or higher still – yet there are none – assuring a lack of consistency, thereby making the parliament subservient to the judiciary. For example: the non sagaciousness or dishonesty of taking oath on PCO previously was all right, and a “past and closed transaction” for the judiciary since they later suffered and did good as well, but for others completely different standards are being set.
Further, there is previous legal precedence from the Supreme Court on not allowing the striking down of any statute unless it is violative of any of the articles pertaining to fundamental rights (contained within Chapter I, Articles 8-28).
Imran Khan’s electability was a case in point, where the Election Commission under Justice (retd) Qazi Muhammad Farooq dismissed the case filed by the MQM with regard to his ineligibility for public office based on 62(f), since even though the article exists in the constitution, it is obviously malafide.
If such malafide and never-used-before articles are provided sanctity, the parliament will remain forever insecure and weak, never gaining enough maturity or time to attempt to modify and bring about deeper constitutional reforms that will ultimately strengthen democracy, and clip the military’s power, which has historically used the judiciary to send democratic governments packing.
The Gen Musharraf of the future could use this celebrated NRO judgment to justify disqualifications unless the threatened politicians buckle over and play ball by creating a future mutant party like the late PMLQ to serve him.
This is the biggest argument against keeping the parliament subservient to the judiciary via such articles (the judiciary’s good intent alone cannot be relied upon given its history of collusion in destroying democracy in the country – powers of the three organs of the state must remain separate).
2. On Article 227:
Article 227 is a part of Chapter IX: (Islamic provisions – Articles 227 – 231). Perusal of these in their entirety will clarify that these pertain to, and are meant specifically for the Council of Islamic Ideology (CII), and no other authority, to advise National or Provincial assemblies as to whether statutes being considered by them are repugnant to the injunctions of Islam. Again, citing 227 to strike down the NRO is equivalent to arrogating the CII’s authority to itself, the Supreme Court.
3. On Article 89:
Article 89 confers on the President powers of issuing ordinances if he is satisfied that circumstances necessitate so, at times when the National Assembly is not in session. The NRO judgment implies that the Supreme Court will henceforth even sit in judgment on whether the thought, reasoning, circumstance behind the issuance of an ordinance is valid or not – direct arrogation of president’s power to itself.
Given the NRO was declared “void ab initio being ultra vires and violative of various constitutional provisions (Article Nos. 4, 8, 25, 62(f), 63(i)(p), 89, 175 and 227 of the Constitution”), put together with a reading of Article 89 of the Constitution, Asma’s point is that holding NRO violative of Article 89 is akin to arrogating the president’s power to judge suitability/need of enacting ordinances to itself, the court – otherwise how can it be violative?
The court should have ruled on the legality or constitutionality alone of the ordinance, not the act of judging its necessity (which is the president’s prerogative – separation of powers etc.) or issuance. The constitution of Pakistan affords this prerogative to the President for smoothening executive decision making, whilst still holding the legislature supreme by requiring such ordinances to be approved by the NA within a short period of time.
4. Unanimous decision via a short judgment:
Striking down of the NRO by a unanimous decision per se is unusual, but even that is not the issue – in case that has escaped your notice. The use of articles considered controversial, impracticable or tools of dictators to keep puppet parliaments pliant, or the use of articles considered unconstitutional for the use of striking down any law, to arrive at a unanimous judgment by 17 judges without putting forth in the public domain reasons for doing so, gives rise to appearance of a ‘takeover’ judgment whereby executive, legislative, advisory powers are being arrogated to the court, in preparation for a future ‘judicial coup’ that might help strengthen the establishment’s hand, if not directly support a military coup.
Such takeover judgments may be popular with the public (which does not understand deeper implications on the democratic process) but are damaging to the separation of powers principle.
5. Supreme Court Judgments have enormous implications for the future:
Incidentally, does it ever occur to you how come the 1954 Molvi Tamizuddin Case and its attendant ‘Doctrine of Necessity’ continued to be relevant even when the first Pakistani constitution was signed only in 1956, two years after the Tamizuddin case? Or that the Supreme Court judgment in the famous 1972 case of Asma Jilani (now Jahangir) vs. Government of Punjab was one of the founding principles of the 1973 constitution and its article 6 when the court declared (doc file, a must read):
“As soon as the first opportunity arises, when the coercive apparatus falls from the hands of the usurper, he should be tried for high treason and suitably punished.” [PLD 1972 SC 139]
The answer: the 1954 Tamizuddin case (Doctrine of Necessity) had set a precedent even though it was decided before any of the three Pakistani constitutions of 1956, 1962 and 1973 had been signed, for the simple reason that a country’s legal history does not operate in a vacuum. Any future Supreme Court, perhaps even under some future Martial Law Administrator, will be competent to cite the NRO judgment of 2009.
Unquote
Sarah that’s an excellent summary… I was disappointed that Asma Jahangir didn’t mention article 227 in her Dawn article, but really reading this summary of her comments it seems like she could have written many articles on all the different problems with the short order
Rabia, Here is an article in The News today, which is relevant to your excellent analysis:
Add religion and stir
Sunday, January 10, 2010
Afiya Shehrbano
Some supporters of the (secular) rule of law in Pakistan objected to the reference to Article 62(f) in the short order on the NRO by the Supreme Court. This has led Moeen H Cheema and Barrister Shahzad Akbar to label such activists as ‘liberal fundamentalists’ (January 7). Their main argument for such an accusation relies on a division they make between universal and modernist values of rights, and a more egalitarian possibility, in theory at least, of the Islamic right to equality.
The writers defended the SC decision to strike down the NRO as violative of Article 62(f), which requires a member of parliament to be “sagacious, righteous and non-profligate and honest and ameen”. By doing so, the writers compound the legal implications of the NRO for the president with the notion of broader moral rewards that can emerge from Islamic readings of all financial and political cases, especially for the ‘poor and disenfranchised people of Pakistan’. This is a big leap of faith for Islamic revivalist scholars. The post-9/11 identity crisis for the Muslim youth has meant more hope, optimism and investment in a re-discovered Islam. Often, their alternative proposition is premised on a supposedly ‘authentic’ and uncontaminated divine legal discourse.
The writers admit that both the process of Islamisation of laws as well as judgements by the FSC have historically led to some miscarriages of justice and provided the opportunity for abuse of powers. They also point out the influence of misogyny and discriminatory attitudes seeping into appellate and trial courts. Further, they concede that the rights of women and minorities have been casualties of the Islamisation of laws. So really, their only support for an Islamic cover to rulings in political cases complements the moral struggle within a judiciary motivated by a ‘distrust of the executive’. For the purpose of moral and financial cleansing of politicians, it seems that all the other losses accrued through Islamisation are momentarily acceptable or criticism can be suspended.
To highlight the progressive possibilities of Shariat courts, the article quotes a case whereby the SC disqualified a member of parliament for using his position to obtain a loan on favourable terms. The writers suggest that the ruling was inspired by Islamic law and in line with Article 2(A) of the constitution. However, if the constitution has a separate existing provision about the abuse of power and it is already in conformity with Islamic ethos, why is there a need to stamp every ruling with a moral seal? This then automatically renders the core constitution as an inadequate moral precept. The proposal seems to be: let’s just ‘add Islam and stir’ for a recipe that will cure all ailments.
More importantly, if the judiciary is to be guided exclusively by the Islamic law and the said member of parliament was a non-Muslim, what would the ruling have implied then in terms of equality before the law? One doesn’t even bother to wonder what the implications of the current NRO ruling would be if the president of the country was a non-Muslim. The broader question is: can infusing law with Islamic references really provide a neutral ground? Can individuals be judged for their actions, and not according to variables, such as one’s pre-destined status, interpretations of shariah, or with reference to hierarchies and scheme of history? Also, it is a natural conclusion that if Islamic jurisprudence is more egalitarian than universal or modern laws, then it is not just the judiciary that needs to be purged of secular influences. Indeed, according to this logic, the executive has to legislate not by avoiding injunctions against Islam, but by actively and exclusively referring to, and remaining within the realm of, Islam.
Of course, by admitting to the inequality of rights of minorities and women in judicial history, the writers would be able to argue (outside of this article) for the reformist orientation of a judiciary and realignment of its current discriminatory attitude towards women and minorities. However, according to their thesis, this would only be possible once the judicial system rejects the standards set by universal secular laws and is completely framed and located within Islamist rights instead. Revivalist scholars consider the existing competing and conflicting forces of the ‘western’ universal laws as contradictory. They consider modern values as a hurdle towards an all-embracing, pure and, at least amongst Muslim men, equalising possibility of Islamic jurisprudence.
Apart from a concern about the influence of such rulings on lower courts is the anxiety over the mixing of religion within dispute-resolution mechanisms at the community levels. So far, the Anjuman-e-Muslehat and other such processes often include lay people. By definition, the immediate injustices and offences are dealt with in accordance with people’s lay opinions and experiential, collective, commonsense of justice. If we begin to impose higher theological arguments and references into such systems, they may just rupture a precarious, yet effective, even egalitarian, process of justice delivery.
Any project that calls for a total alignment of legal processes with religion in Pakistan necessarily requires a cultural and social excavation. Thereby, all rights will be sought and debated and contested only within a religious framework. Clearly, no proponent of this project could possibly argue that there is any single and indisputable legal, social, political or personal view of Islam or its applied form. It is more complicated when we attempt to graft such projects onto the modern nation-state with all its attendant historical baggage. In any case, to dovetail the economy, all financial transactions, a governance system as well as ensuring equal spaces for an already oppressed sector of religious minorities and women in this Islamic state will be a serious challenge. There is also the thorny issue of Islamic punishments and the form of execution.
Revivalist scholars are usually diasporic and imagine such utopias while seated at academic ivory towers in the west and often in reaction to Islamophobia. Such projects, which entail a re-invention of history and are extremely political in nature, beg the question of ownership – who will guide this process? In a democratic system, it has to be parliament. Unless the attendant issues are addressed, it is an unhelpful exercise to construct the binaries that the writers have done by setting up western and Islamic justice as exclusionary or indeed competing categories.
The writer is an independent researcher based in Karachi. Email: afiyaszia@yahoo.com
http://thenews.com.pk/daily_detail.asp?id=217931
thanks abdul, here is a link to the article the author is responding to:
http://thenews.com.pk/print1.asp?id=217234
This one by Fahd Ali in Daily Times (11 Jan 2010):
The controversial legal aspects of the judgement have already been highlighted in the media. It is surprising that all 17 judges arrived at exactly the same conclusion in their judgement. Even the July 20, 2007 verdict had a 10-3 split. It certainly beats one’s mind (if not senses) that an issue as controversial as the NRO would result in such a show of ‘solidarity’ amongst the brother judges of the full bench. Again, the judges invoked a clause, among others, to nullify the NRO, which was essentially introduced by a military dictator to control the political system in the country. If parliament over the years has been unable to remove it from the Constitution, the least the Supreme Court could do was abstain from invoking the said clause and thus providing it any ‘legitimacy’. Similarly, some experts have also argued that invoking Article 227 of the Constitution to declare the NRO null and void basically encroaches upon the jurisdiction/powers of the Council of Islamic Ideology (CII). The biggest surprise, I think, was following up the judgement with the formation of monitoring cells at the level of the Supreme Court and the High Courts. To say one controversy has given way to another would be a more apt description of the judgement rather than terming it historic.
http://dailytimes.com.pk/default.asp?page=2010\01\11\story_11-1-2010_pg3_2