If we go back to history and re-visit Maulvi Tamiz-ud-Din and Dosso cases, and look at the application of 'Doctrine of Necessity' used by Justice Munir and his fellow judges, and the reason for applying that Doctrine in those cases, a confusion arises. Justice Munir explained years after writing his judgements in the two cases that had he not applied that doctrine at that time and had passed an order as per the Constitution, the order could not have been implemented and a crisis would have been created in the country.
The reason given by Justice Munir has been debated by the media, civil society and legal fraternity for decades and many people do not agree with that. For example, renowned lawyer Hamid Khan wrote in his book on the Constitutional History of Pakistan that the court was bound to decide the matter as per the Constitution of Pakistan and that it was not a matter for the court’s consideration as to who would have implemented its order. Was Justice Munir right in surmising that he could not have got an order based on the Constitution implemented by the government of Governor General Ghulam Muhammad, and martial law government of Ayub Khan, as the present SCP could not do so? Or has the present elected government, which stands for constitutionalism, erred by not implementing the SCP’s order? Here I have not gone into the insinuations made by the government about the impartiality of the judges of the Supreme Court, and their allegedly erratic judgements as such; but the allegations have already been made by others publicly.
Recently, when police went to the residence of former prime minister Imran Khan in Zaman Park, Lahore, he resisted arrest. His party workers assembled outside his residence and remained for several days, and resorted to violence including attacking the police. Several policemen were injured in the clashes between police and Khan’s protectors. Ultimately, Khan reached Lahore High Court under the protection of his private guards and party workers, got transit bail, reached Islamabad High Court, and obtained bail before arrest.
A similar incident was repeated a couple of days ago in the matter of Chaudhry Pervaiz Elahi, PTI president and twice former chief minister. There is confusion in this matter as well. Both these gentlemen were being arrested in cases registered with the police. The police has the power to arrest the accused for the purpose of investigation, and to be clear, I am not debating the correctness of the manner in which the police exercises its power. The usual practice in such matters is that either one sneaks into courts before arrest by the police, and obtains a bail before arrest or, if one gets arrested, obtains a bail after arrest from the court.
The confusion that arises in these two situations is that if one can muster enough muscle power and is able to thwart the law enforcement authorities successfully, will superior courts take a similar lenient view of the matter and will even be willing to bypass the lower courts in such matters? Additional confusion is caused when one wonders if only the politicians would be entitled to such treatment, or if other citizens of the country could also avail this facility.
In a talk show, former MNA Jamshed Iqbal Cheema commented on the ability of a political party to win elections in a particular province by terming that party’s voters "illiterate". Given the literacy rate in Pakistan, we can safely say that a majority of the voters in all four provinces are illiterate. Therefore, all parties obtain a significant number of votes cast in their favor by illiterate voters. To this day, Mr. Cheema’s party has not dissociated itself from his statement. The confusion again is that are we now arguing that only educated persons should be given a right to vote? Or should we devise some other mechanism of elections wherein the effect of illiterate voters is limited, perhaps by conferring the "right to rule" to a single political party? Names of political parties and provinces do not matter in this inquiry, as the point of confusion is rather generic.
The son of a former chief justice of Pakistan (CJP) was caught in audio leaks demanding money from a provincial assembly candidate, for securing the ticket of a political party using the influence his father had. This matter is also very confusing. Did the learned judge develop that influence in the higher echelons of that party after his retirement? If yes, then on what basis did he cultivate that relationship? If he had such intimate relations with the leadership of that party, even at the time he was CJP, could he have performed his duties with integrity and impartiality?
The former CJP was himself caught advising on legal matters to the lawyer of that party on telephone. In what capacity? I don’t know whether charging for his services for obtaining a political party’s ticket is illegal. But is it not beneath dignity for a former chief justice? The confusion is: what conduct should we expect from the people occupying such high and prestigious positions? Should they be trusted with the onerous responsibility of self-regulation?
Quaid-e-Azam Muhammad Ali Jinnah briefly served as presidency magistrate of Bombay in the early part of his career. Young Jinnah used to read newspapers in the morning before convening his court. As per his instructions, his staff used to highlight all news that pertained to the matters that might come up before him. He didn’t want to cloud his judgement with the reporting and opinion of newspapers. Rather, he wanted to decide all matters on the basis of evidence produced before him in the court.
Today, we frequently hear judges of the superior courts remarking about the discussions in the talk shows, social media trolling and opinions of journalists in the matters sub-judice before them. Are the old norms outdated?
The situation becomes even more confusing when one finds close relatives of judges in active politics. Are they able to keep themselves above politics, and unaffected by the political activism of their close relations, especially when they are unable to keep themselves aloof of print, electronic and social media?
Most of the members of four provincial assemblies, the National Assembly and the Senate of Pakistan, are rich businesspersons and feudal landlords. Their politics is not possible without the tons of money they have. This role that money plays in Pakistani politics makes it impossible for anyone other than them to enter into politics. On the other hand, the majority of the people they govern are living below the poverty line. Will they ever take effective measures to solve problems of a large number of Pakistan’s population? Will they ever be able to understand their problems? Will they ever be able to relate to the people they represent? Chances are small, as is evidenced by the fact that the number of people living below the poverty line is increasing every year.
Will Pakistan ever progress with this model of politics? Are our assemblies just a game of musical chairs where faces change to some extent, but all elected representatives belong to the same elite class? People are confused as to how they can bring about a change without disrupting the country and increasing their predicament.
The people of Pakistan are confused in these matters and do not have an effective platform to discuss and resolve their confusions in a peaceful manner. Even rational discussion is becoming taboo in the country. For a healthy discussion, one has to respect others’ point of view and should be open to the fact that there can be differences of opinion; that there can be more than one way of doing things. We are instead moving towards irrational protectionism, where discussions on role of military in the country, conduct of judiciary, political model, role of media, distribution of wealth, and role of religion in our daily lives, all are responded with threats, scold, abuse, abduction, torture and death. Such an intolerant environment can only lead to either a brain-dead society, or anarchy in the country.