The IHC had earlier made its view clear with reference to the arrests under Section 124-A (sedition) and under Section 7 of the Anti-Terrorism Act (ATA), 1997. How can you determine the patriotism of anyone, was the question the IHC Chief Justice, Athar Minallah, had thrown at the Islamabad administration.
Last Monday, after the IHC Chief Justice resumed the hearing of bail petitions filed by the 23 protesters, the Islamabad Deputy Commissioner, Hamza Shafqaat, told the court that all charges against the protesters had been dropped. On the basis of that statement, the IHC wrapped up the bail petitions of the protesters. “After the statement of the Islamabad administration, [the] petitions have become ineffective,” the Chief Justice said.
But this was not all. Justice Minallah made some other comments too, as reported: “We don’t expect that a democratic government will curb freedom of expression. Everyone’s constitutional rights will be protected. This is Pakistan, not India.” (italics added)
The significance of the italicised part of his statement cannot be over-emphasised. In an ironic twist, the honourable Chief Justice of IHC has done what the government should be doing — stressing what the thrust of Pakistan’s foreign policy should be, especially since August 5, 2019, when the RSS-BJP government that currently rules India illegally annexed Occupied Jammu and Kashmir. Let me explain.
In this space I have often pointed out that in order for Pakistan to challenge India’s actions in Kashmir, as also what Narendra Modi’s RSS-dominated government is doing in that country, Islamabad must create a contrast between itself and India, a contrast that is clear and visible to Indians as well as to the rest of the world. The soft power and image that India has built over three decades is slowly but steadily eroding because of the Modi government’s actions. This provides space to Pakistan to act and present itself as a responsible state, both externally and internally.
In fairness to the government, it does understand that — Kartarpur Sahib initiative, declaring the ancient Hindu religious site of ‘Panj Tirath’ in Peshawar as a national heritage site, presenting the correct narrative, a diplomatic offensive on Kashmiris’ right to self-determination, an outreach beyond traditional allies et cetera. The prime minister also needs an inclusive national security strategy which goes outside the narrow grooves of traditional security perspectives and casts the net wider. He has certain experts to advise him on that. They are good picks, but they need to be utilised fully without being hampered by the Byzantine maze of entrenched bureaucracy.
Equally, however, the government continues to act like Nero. According to Will Cuppy in The Decline and Fall of Practically Everybody, “In some reports, Nero was ahead of his time. He boiled his drinking water to remove impurities and cooled it with unsanitary ice to put them back again.” It should be obvious to anyone, even if it weren’t to Nero, that doing such a thing in plain English is called stupid.
But let’s move on from Nero to our government. It makes no sense to accuse India (rightly) of rights violations and calling upon the world to take note of that and then picking up protestors in Islamabad and slapping sedition charges on them; or, to talk about India’s internet shutdown in IOJK and then coming up with an absurd notification curbing social media companies that I wrote about in this space last week; or, to go after the media and try to browbeat it while claiming that Pakistan enjoys media freedoms.
One can go on, but I believe the reader has got the point. Which is where and why Justice Minallah’s astute statement becomes so important. He is subtly telling the government that Pakistan should act differently from India. He is also taking pride, and rightly so, in creating a contrast between how the Indian Supreme Court has behaved — Afzal Guru’s judicial murder, Babri Mosque case, petitions against Citizenship Amendment Act, petitions against abrogation of art. 370 etc — and how Pakistan’s higher judiciary does, or should.
Justice Minallah knows that the higher judiciary in Pakistan has often fallen short of dispensing justice. He also believes that judiciary should not begin to slide down the slippery slope that presents itself when judges decide on judicial activism, moving from fundamentals to policy. His obiter dicta, therefore, are a signal to the government to do its job within the bounds of law and the constitution.
This is very significant because, as Dr Ilhan Niaz argues in his paper, Judicial activism and the evolution of Pakistan’s culture of power, there is a difference between rule of justice and rule of law. He uses the examples of Theseus and Solon from ancient Athens and writes: “Theseus was a heroic figure who detested oppression and used his strength to inflict punishment on the unjust. As the embodiment of righteous wrath, Theseus could respond to injustice as if it were a part of nature. Solon, in contrast, did not trust himself with absolute power and believed that by means of rational laws and institutions, communities could contain arbitrariness.”
But, as Niaz argues, the rule-of-justice approach has not unfolded in a vacuum. According to him, the “Pakistani variant of a rule of justice tradition” seeks to “to hold the executive to…account.” In doing that, the “judiciary draws popular support from such exercises as the spectacle created resonates with the public, and thus support is the fuel upon which judicial independence rests.”
This is why it’s important for the government to act within the ambit of law and not use laws despotically. Justice Minallah’s statement should also be music to the ears of Ministry of Foreign Affairs where diplomats are busy building a case for Pakistan and against Indian excesses. They can surely do without the highhandedness demonstrated by other organs of the state that routinely put unsanitary ice in the water the MoFA boils.
In the army they say the time spent on reconnaissance is never wasted. On the civilian side of things, reconnaissance relates to deliberating and thinking before acting. One wouldn’t need a u-turn every one kilometre if that were happening.
Let’s hope the government takes Justice Minallah’s words seriously.
The writer is a former News Editor of The Friday Times. He reluctantly tweets @ejazhaider