NRO II: Constitutional Superfluity

By Yasser Latif Hamdani
Duniya ki tareekh gawah hai, adl bina jamhoor na hoga
History bears witness, there shall be no republic (democracy) without justice
-From Aitzaz Ahsan’s Poem “Kal, Aaj Aur Kal” - the anthem of Pakistan’s Lawyers’ Movement.
“I am for the Law. We wish for a republic of laws.” John Adams- one of the founding fathers of the United States of America.
”The first observation that I would like to make is this: You will no doubt agree with me that the first duty of a government is to maintain law and order, so that the life, property and religious beliefs of its subjects are fully protected by the State.” Mahomed Ali Jinnah- our Quaid-e-Azam.
The decision on NRO was a historic one. Based on the short order, however, a reasonable apprehension exists that by invoking articles 62-f and 227, the Court has effectively brought into play dormant Islam-inspired clauses which shall further strengthen rightwing in Pakistan. This apprehension is obviously not without merit. Articles 4, 8 and 25 – 8 and 25 being fundamental rights which according to constitutional theory are supreme- were much stronger clauses and the court did well to invoke these but this is where the court should have stopped. Ofcourse this is entirely a conjecture without the detailed judgment. That said the important thing is that the NRO has been reversed and it has strengthened democracy whether nay-sayers accept it or not. The people need to see that the system works and punishes crooks no matter how powerful they are. And there is no doubt that the Supreme Court should also take to task those holy cows that have run amok in the country but that will also happen in good time.
Still one must consider why it is that a certain section of the Pakistani liberal intelligentsia who I often agree with on most things has been up in arms against the judgment. I for one don’t understand why Asma Jahangir of all people is bringing up the issue of Islamic provisions, when the “Asma Jillani Case” which made her famous and which she makes a point to quote in her every television appearance made the Objectives Resolution the grundnorm of the Pakistani state, society and constitution? This a good a decade and a half before General Zia inserted a mutilated version of the same as the “substantive part” of the constitution of Pakistan under 2-A. Given that 62-f is General Zia’s doing but Article 227 was placed there by Zulfikar Ali Bhutto’s PPP through a unanimous vote on the Islamic constitution in 1973 that included NAP which considered itself the defender of left and secularism in Pakistan. It is unfortunate but true that the so called “Islamic Provisions” have been part and parcel of the Constitution of the Islamic Republic of Pakistan’s salient features thanks to the party in power.
So the way out is not ignoring certain sections of the constitution and crying foul that the judiciary has used one kind of law over the other (though it is no doubt upsetting to me) but to work to strengthen constitution and rule of law so that an elected legislature tomorrow may undo what has been done in the past. It certainly does not help that people like Dr. Ayesha Siddiqua have tried to reduce the issue to liberal and conservative divide and in her more recent column has had the audacity to argue that those applauding the judgment are all narrow nationalists who have it in for President Asif Ali Zardari. This after she failed to even articulate a single sentence when questioned about her article on a live TV show on Duniya TV.
Such sham arguments and shamelessness might win some people brownie points somewhere, but in the longer run it discredits forces of liberalism in Pakistan, especially when most liberals are not aligned with these few self appointed spokespersons for liberal thought. Only by treading the straight and narrow constitutional path – based on rule of law, equality of citizenship and the principle that justice is blind- will Pakistan one day emerge as a progressive democratic state. Remember the hold of religion on a democratic constitutional society can at best only be temporary for procedure and man-made constitutions have often trumped priests with a divine mission. So it shall be in Pakistan as well, for the final chapter of our history is not yet written.