Judicial Hubris
By Dr Mohammad Taqi
Florida
An old dictum states that summa ratio est quae pro religione facit, meaning the best law is that which advances religion. At least that is the impression one gets from the assorted pronouncements of the Supreme Court (SC) of Pakistan in the National Reconciliation Ordinance (NRO) 2007 case over the last two years.
In his January 10, 2012 judgment regarding the implementation of the previous SC decisions in the NRO case, honorable Justice Asif Khosa wrote: “In the above mentioned backdrop the apparent persistent, obstinate and contumacious resistance, failure or refusal of the Chief Executive of the Federation, i.e. the Prime Minister to completely obey, carry out or execute the directions issued by this Court in the case of Dr Mobashir Hassan (supra) reflects, at least prima facie, that he may not be an ‘honest’ person on account of his not being honest to the oath of his office and seemingly he may not be an ‘ameen’ due to his persistent betrayal of the trust reposed in him as a person responsible for preserving, protecting and defending the Constitution and also on account of allowing his personal political interest to influence his official conduct and decisions.” The honorable judge quoted at least five verses of the Holy Qur’an to support his assertion.
The NRO was a person-specific regulation and repugnant to the universal principles of justice and equality. It could have been quashed without recourse to a full treatise in theology and theocracy. It is most unfortunate that the honorable judges have repeatedly resorted to religious rhetoric to establish the case against the NRO beneficiaries. In a country reeling under the effects of radicalization, the last thing needed is the industrial-strength moral certitude and virtual proselytizing from the bench. The 2009 judgment of the SC in the Dr Mobashir Hassan and others vs the Federation of Pakistan, declaring the NRO null and void, and now this verdict proclaiming the prime minister dishonest and a liar, are probably the most religiously charged judgments in the judicial history of Pakistan. Both Justice Khosa and before him, the honorable Chief Justice Iftikhar Muhammad Chaudhry and Justices Jawwad Khawaja and Ijaz Chaudhry have referred abundantly to the verses of the Holy Qur’an, the Hadith and Sunnah (word and practice) of the Holy Prophet Mohammad (PBUH), to drive home their point about alleged corruption of the NRO beneficiaries and how they benefited unfairly from a preferential treatment.
In the 2009 judgment Justice Ijaz Chaudhry had also drawn upon the works of Wasif Ali Wasif and Qudratullah Shahab — the leading obscurantists of the Ziaul Haq and Ayub Khan era — who served dictatorial regimes to deface the tolerant South Asian Islam and culture. But the coup de maître had come from Justice Jawwad Khawaja who wrote in his 2009 note: “The concept of tauba and sincere repentance coupled with restitution of any ill-gotten gains and the expression of genuine remorse for past excesses provide an age-old matrix for fostering reconciliation.” These judgments are also peppered with anecdotes from the ‘golden’ era of several Muslim rulers, quotes from Persian poetry of Sa’adi Shirazi and Rumi and the Greek philosophers.
It would have been highly desirable had the august court restricted itself to the legal questions it was seized with. Indulging in a very selective reading of the Holy Qur’an, Sunnah of the Holy Prophet (PBUH) and Persian poetry is not just cause for concern, it smacks of a judicial and personal hubris.
Invoking religious and poetical works raises more questions than it answers. For example, does the Holy Qur’an not say clearly: “Most hateful it is with Allah that you say that which you do not do” (as-Saff 61:3). The great Persian poet Hafiz Shirazi had alluded to the same verse:
“Mushkilay daarem ze danishmand-e-majlis baz purs,
Tauba farmayan chara khud tauba kamtar mikunand.”
(Translation: Could someone solve my dilemma and ask the sages that why those demanding repentance (tauba) of others do not repent themselves?)
The Holy Qur’an has also clearly prescribed that justice must start with one’s own self: “O you who believe! Stand out firmly for justice, as witnesses to Allah even though it be against yourselves, or your parents, or your kin, be he rich or poor, Allah is a Better Protector to both” (an-Nisa 3:135).
The honorable court had referred to the book Encyclopedia of Seerah and presumably would not be unaware of the Hadith regarding fairness and equality: “None of you [truly] believes until he wishes for his brother what he wishes for himself” (Imam Al-Nawawi’s Hadith compilation).
Surah An-Nahl is unambiguous about the sanctity of an oath: “And fulfill the Covenant of Allah when you have covenanted, and break not the oaths after you have confirmed them, and indeed you have appointed Allah your surety. Verily! Allah knows what you do” (16:91).
And, of course, the Holy Qu’ran says: “And the heaven He has raised high, and He has set up the Balance. That you may not transgress the (due) balance. And observe the measure with equity and do not make the balance deficient” (ar-Rahman 55:7-9).
The question then is whether it is only the alleged violation of an oath by the democratically elected prime minister that is of concern or does the Qur’anic injunction also apply to others as well? Who gets to decide if violating prior oaths through taking unlawful PCO oaths, and endorsing and validating a usurper, constitute a transgression? What is the status of the SC selectively condoning its own previous transgressions via its July 31, 2009 judgment? Having legitimized the 1999, 2002 and 2005 actions of those sitting on this bench thereby treating PCO oaths as “past and closed transactions” while brandishing a different yardstick for others, raises concern whether the Qur’anic injunctions about fairness are being applied evenly across the board.
The point is that where there was no need for the Ziaist Islamist rhetoric a la Article 61 (1-f), this court has reintroduced it with fanfare. The SC, however, has not yet practiced what it has preached. None of the honorable judges who have taken multiple PCO oaths even publicly acknowledged their lapse of judgment let alone apologize for it.
Asma Jahangir has aptly stated if the esteemed court invokes the morality clause for others, it would itself have to be held to higher moral standards. Repentance and remorse indeed bring closure but tauba was not prescribed for a select few — it applies to us all.
(The writer can be reached at mazdaki@me.com. He tweets at http://twitter.com/mazdaki)
