Moeen H Cheema and Barrister Shahzad Akbar
The Supreme Court's judgment in the NRO case has ruffled quite a few feathers. The governing PPP, in particular the president's men, are up in arms given not only the political embarrassment caused by the apex court's verdict as well as the revelation of damaging information in the course of hearings on the NRO but also the direct threat of prosecution and disqualification posed to the president's inner circle, if not the president himself.
However, some of the criticism has come somewhat unexpectedly from a particular quarter of the lawyers' fraternity that had actively pushed for the restoration of the judiciary – liberal rights advocates who have been historically supportive of the superior courts' public interest and fundamental rights jurisprudence. The grievance appears to be the inclusion of the reference to arguments based in the Islamic law by the court in its short order amongst the grounds for declaring the NRO to be unconstitutional. Such a reaction reeks of a fundamentalist (i.e. uncompromising and simplistic) aversion to the entirety of the Islamic legal discourse and while it comes from a segment of society professing a liberal rights-oriented ideology it is inherently, fundamentally and irreconcilably illiberal – illiberal in that its starting point is a denial of the possible validity of another worldview.
To the extent that the Supreme Court has incidentally referred to the principles rooted in the Islamic law in its short order invalidating the NRO, the court's position is neither novel nor a departure from the established law. Those who have suggested otherwise are either ignorant of the particular strand of the Islamic legal doctrine or, as is more likely, the anxiety with Islamic public law principles arises on an altogether different count. If the established principles of the Islamic public law discussed above are taken to their logical conclusion several members of the president's coterie face political demise. Worse still, the president himself may find his constitutional protection from criminal prosecution to be less secure than a plain reading of the text of Article 248 suggests.
There is no denying that Pakistan's particular experience with the Islamisation of laws has been problematic in multiple ways. The enactment of the Hudood and the Qisas and Diyat laws, for example, led to several kinds of miscarriages of justice and created room for the abuse of powers by the police as well as misuse by private individuals. Furthermore, the enactment of these laws played havoc with the doctrinal foundations of Pakistan's laws with the result that it took the courts and parliament three decades to bring many of the controversies to an uneasy rest.
What has arguably been an even more sinister aspect of the Islamisation of laws is the further legitimation of existing cultural practices and social attitudes that are inherently discriminatory and misogynistic. This resulted in the adoption by the non-Shariat courts, trial as well as appellate, of positions explicitly and implicitly discriminatory towards women and religious minorities. The Lahore High Court's decision in a case denying a woman the right to marry without her wali's consent is a notable and by no means singular example.
What is missing from this picture of Islamisation, however, is a narrative of the evolution of a jurisprudence of Islamic public rights initially by the Shariat courts and later on by the high courts and the Supreme Court of Pakistan. Whilst there is no denying that the Shariat courts' jurisprudence regarding minorities' rights has been problematic and that these courts have thus far failed to take up the case for women's rights, the Shariat courts managed to develop a robust doctrinal base for the Islamic right to equality, the independence of the judiciary and, most relevant to the NRO controversy, the principle of the accountability of the executive.
A prime example of the development and enforcement of the Islamic right to equality is the Federal Shariat Court's decision in 'In Re: Islamisation of Laws' (PLD 1985 FSC 193). The court declared Section 4 of the Members of the National Assembly (Exemption from Preventive Detention and Personal Appearance) Ordinance 1963 to be null and void for repugnancy to the injunctions of Islam. This statute exempted members of parliament from preventive detention and personal appearance before a civil court while parliament was in session.
It must be noted that the exemption was meant to be temporary and related primarily to appearance before civil courts. Nonetheless, the Federal Shariat Court (and in 1991 the Shariat Appellate Bench of the Supreme Court) struck down even this limited protection on the basis of an Islamic right to equality noting that as regards the administration of justice Islam "requires that justice be rendered regardless of the status of the parties." Considering that the NRO sought permanent (as opposed to temporary) exemption from appearance before the courts in criminal (as compared to civil) cases, it did not stand a chance in the light of the principles laid down by the Federal Shariat Court nearly two and a half decades ago.
As Martin Lau observes in his recent book The Role of Islam in the Legal System of Pakistan, the Islamic right to equality is stronger than the fundamental right to equality provided in Article 25 of the constitution as it is rooted in a distrust of the executive. It must also be noted that the Federal Shariat Court's jurisprudence on Islamic rights (even during the rule of General Zia, to whom the court was presumed to owe an allegiance) was stronger than the rights jurisprudence of the High Courts and the Supreme Court: "a most extraordinary result considering that the implementation of the Islamic law is normally associated with a loss of fundamental rights."
The Supreme Court's decision in a 1992 case (PLD 1994 SC 412) demonstrates further how the high courts and the Supreme Court took the baton from the Shariat courts and the extent to which Public Interest Litigation (PIL) jurisprudence is indebted to the Shariat courts' rights jurisprudence. The Supreme Court disqualified a member of National Assembly for having used his political position to obtain a loan on favourable terms in disregard of the established rules. The court based its jurisdiction and authority on principles of the Islamic law and Article 2-A of the constitution. To quote Martin Lau again: "Accountability of public officials… was one example of the positive impact of the Islamic law."
It is an established principle of the constitutional interpretation that when two provisions of the constitution are seemingly in conflict these must be read together and harmoniously interpreted. On the one hand Article 248 promises the president protection from criminal proceedings in any court during the term of his office; on the other, Article 2-A brings in principles of the Islamic law, including the accountability of the head of the executive. Ironically, in their opposition to the entirety of the Islamic legal discourse those who have campaigned long and hard against the victimisation of the poor and disenfranchised now stand on the side of the rich and powerful.