NRO I: Void Ab Initio

The Supreme Court of Pakistan has declared the controversial National Reconciliation Ordinance (“NRO”) void ab initio. This is a historical development in our judicial history from a jurisprudential point of view.
1. Quoting the Indian precedent of Indira Nehru Gandhi v. Raj Narain the learned counsel- Pakistan’s finest in my view- Salman Akram Raja argued that there could be no “legislative judgment”. Indian Supreme Court had declared null and void a proposed constitutional amendment introduced by the prime minister that stopped the judiciary from adjudicating on the validity of elections. The prime minister wanted the executive branch to determine how elections were to be administered in India. This contention has been accepted by the Pakistan Supreme Court. Now there may never a legislative judgement and this would have profound jurisprudential consequences. We will do well now to extend this logic to other issues which need not be repeated here but which have been discussed on PTH to death.
2. The court has ruled that this ordinance has been held to be violative of Article 4 of the constitution :
Right of individuals to be dealt with in accordance with law, etc.
(1)
To enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen, wherever he may be, and of every other person for the time being within Pakistan.
(2)
In particular :-
(a)
no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law;
(b)
no person shall be prevented from or be hindered in doing that which is not prohibited by law; and
(c)
no person shall be compelled to do that which the law does not require him to do.
3. The NRO has been declared violative of Article 8
Laws inconsistent with or in derogation of fundamental rights to be void.
(1)
Any law, or any custom or usage having the force of law, in so far as it is inconsistent with the rights conferred by this Chapter, shall, to the extent of such inconsistency, be void.
(2)
The State shall not make any law which takes away or abridges the rights so conferred and any law made in contravention of this clause shall, to the extent of such contravention, be void.
(3)
The provisions of this Article shall not apply to :-
(a)
any law relating to members of the Armed Forces, or of the police or of such other forces as are charged with the maintenance of public order, for the purpose of ensuring the proper discharge of their duties or the maintenance of discipline among them; or
[7]
(b)
any of the
(i)
laws specified in the First Schedule as in force immediately before the commencing day or as amended by any of the laws specified in that Schedule;
(ii)
other laws specified in Part I of the First Schedule;
and no such law nor any provision thereof shall be void on the ground that such law or provision is inconsistent with, or repugnant to, any provision of this Chapter.
(4)
Notwithstanding anything contained in paragraph (b) of clause (3), within a period of two years from the commencing day, the appropriate Legislature shall bring the laws specified in [8][Part II of the First Schedule] into conformity with the rights conferred by this Chapter:
Provided that the appropriate Legislature may by resolution extend the said period of two years by a period not exceeding six months.
Explanation :- If in respect of any law [9][Majlis-e-Shoora (Parliament)] is the appropriate Legislature, such resolution shall be a resolution of the National Assembly.
(5)
The rights conferred by this Chapter shall not be suspended except as expressly provided by the Constitution.

4. NRO is violative of Article 25
25.
Equality of citizens.
(1)
All citizens are equal before law and are entitled to equal protection of law.
(2)
There shall be no discrimination on the basis of sex alone.
(3)
Nothing in this Article shall prevent the State from making any special provision for the protection of women and children.
5. The NRO is violative of Article 62(f)
Qualifications for membership of Majlis-e-Shoora (Parliament).
A person shall not be qualified to be elected or chosen as a member of Majlis-e-Shoora (Parliament) unless :-
(f) he is sagacious, righteous and non-profligate and honest and ameen;
6. NRO is violative of Article 63 1 (p)
Disqualifications for membership of Majlis-e-Shoora (Parliament).
(1) A person shall be disqualified from being elected or chosen as, and from being, a member of the Majlis-e-Shoora (Parliament), if:- [(p) he has been convicted and sentenced to imprisonment for having absconded by a competent court under any law for the time being in force; or
7. NRO is violative of Article 175 of the constitution
175. Establishment and Jurisdiction of Courts.
(1) There shall be a Supreme Court of Pakistan, a High Court for each Province and such other courts as may be established by law.
(2) No court shall have any jurisdiction save as is or may be conferred on it by the Constitution or by or under any law.
(3) The Judiciary shall be separated progressively from the Executive within [159] [fourteen] years from the commencing day.

8. NRO is violative of Article 227 of the 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.
Analysis:
This judgement lays down and reaffirms the following:
1. Equality of citizenship is supreme.
2. No class of people can be elevated or protected from law which shall apply equally to every citizen. Every class regardless of religion, caste, status, financial status etc shall enjoy similar or no immunities.
3. The Parliament may not tread upon the jurisdiction of the judiciary through legislative judgements passed from within the legislature.
4. Any laws which are not in conformity with Quran and Sunnah are to be struck down provided such an act shall not affect Non-muslims’ rights as citizens.
Fundamentally – this historical judgment which shall be quoted as precedent for many years to come regardless of its political fallout. Will it create the fundamental balance required for the federation of Pakistan based on democratic norms and equality of citizenship is yet to be seen. What is to be the future of President Zardari? Of particular concern should be 63 1 (p) which can amount to a challenge despite presidential immunity. Article 41 of the constitution puts a stop to all proceedings calling into question the election of the president but what if President Zardari was ineligible to hold office in the first place (bear in mind that president is subject to articles 62 and 63).
There is some concern shown by international opinion makers and journalists that this verdict might cause instability and prove to be a boon for the Taliban. I am afraid this is a very naive view to take. The populace’s faith in constitutional democratic process can only weaken the Taliban and not strengthen them.
As we peel the layers of this onion we must also realize that an unprecedented new situation has been created. Pakistan’s steelframe i.e. its military and civil bureaucracy now find it expedient to support the constitutional parliamentary democratic form for its best suits them under the circumstances. The fears of a “coup” are misplaced and overstated. There will be no direct coup by the military. It will continue however to be a player in the grand scheme.