Iftikhar Über Alles

By elections held last weekend were marred in the minds of the public by the unfortunate incident which took place in the competition for PS 53. I am writing, of course, of the infamous slap that was shown on TV in what seemed like an endless loop. This incident has already thrown the provincial seat into question as the accused Waheeda Shah evidently won the vote, but may lose the election based on her action as Election Commission Pakistan (ECP) is reviewing the incident. Of course, now not just the ECP but the Supreme Court too has taken notice! While no one denies that the incident should be properly investigated, it should be asked whether this is the proper use of the Supreme Court’s suo moto powers.

The infamous slap was not the only incident to take place. Who could have missed the footage of ANP supporters flouting the law with airial firing in Mardan that was broadcast all day?

Or what about the tragic crime in which PTI supporters of Shah Mehmood Qureshi fired at PPP workers and murdered poor Farhan Mughal in Multan?

While guns were brandished and arial firings used to intimidate voters – and in at least one case brutally murder a rival party supporter – the Chief Justice has taken notice of…a slap?

This raises two important questions. The first obvious question is why the Chief Justice takes notice of a slap while murders and firings go ignored?

Article 184(3) grants the Supreme Court suo moto powers to take notice of ‘a question of public importance with reference to the enforcement of any of the Fundamental Rights conferred by Chapter I of Part II’. The Chief Justice has probably justified to himself by referring to Article 14 which protects ‘the dignity of man’.

But Chapter I of Part II of the Constitution also protects a right to education (Article 25A) and the right to profess, practise and propagate his religion (Article 20). Pakistan finds itself today facing a crisis on both fronts, where too many of our children are going without education, and our minorities are living in fear for their lives. Waheeda Shah’s slap may have insulted the dignity of one woman, but our failures in education and tolerance are insulting the dignity of over 1.5 crores. Why does the Chief Justice not take these issues as seriously?

And this is not the only issue. Chapter I of Part II also entitles every citizen to ‘a fair trial and due process’ (Article 10A). Why is the SC taking suo moto notice of an incident before it has the opportunity to go through due process? Waheeda Shah has already been called by District Returning Officer Ali Asghar Siyal to record her statement, and ECP has called the APO who suffered the slap to give her statement as well as DSP Tando Mohammad Khan Irfan Shah who was present at the time. ECP has also called Waheeda Shah on 6th March for hearing of the complaint against her actions.

Waheeda Shah’s action is a serious incident that should be investigated. The statements of those present should be taken and Waheeda Shah should be given the opportunity to explain herself also. She should not be judged before all the evidence is available, but she should not be given a free pass either. Whatever the ECP decides, then if it is not considered fair or just, it can be taken to court and work its way through the system.

This is the second problem. The incident took place on Saturday, and less than one week later already the Chief Justice is taking suo moto notice of the incident? For a justice who has repeatedly vowed to restore ‘rule of law’, he seems to forget that rule of law requires that due processes and procedures be allowed to run their proper course. The Supreme Court is not intended as the personal court of Iftikhar Chaudhry’s whims. It is the ‘Court of Last Resort’ – once all other institutions have judged an issue, if still it is not decided to the satisfaction of all parties, then they can appeal to the Supreme Court to hear their case.

Instead of using his suo moto powers in an arbitrary manner, the Chief Justice should observe proper restraint and allow due process and, indeed, the ‘rule of law’ to take its course. He should only take suo moto notice when there is no other option available – certainly not while other institutions are in the middle of proceedings on the same issue. Not only would this help to strengthen institutions, it would also give the Supreme Court the time necessary to actually close some of the cases it has already taken notice of. Pakistan needs a stronger rule of law. We do not need Iftikhar over all.

Supreme Court’s 18th Amendment Decision

You have to hand it to the Chief Justice – he may have walked right up to the edge of the cliff, but he stopped before pushing the country into the abyss. Announcing a verdict on his suo moto hearing on the constitutionality of the 18th Amendment to the constitution (a bizarre bit of self-referential argument if there ever was one), the Supreme Court expressed its concerns with Article 175-A, but stopped short of upending the nation. All things considered, the court appears to have come to the correct conclusion – the authority to amend the constitution lies with the people through their elected representatives in parliament.

The apex court in its decision ordered that Article 175-A, detailing the amendments to the procedure of appointing superior court judges, be sent back to the parliament for review.

“Parliament is asked to review Article 175-A, for it has harmed judiciary’s freedom,” Chief Justice Iftikhar Chaudhry stated, adding that consultation with the chief justice was necessary for the appointment of judges.

It is significant to note that the apex court decided to send Article 175-A back to the parliament for reconsideration instead of striking it down.

Clearly the court is not happy with Article 175-A. And I won’t take the time to make any particular argument for or against this specific article. But the court smartly avoided a constitutional crisis by not superseding the written constitution.

The Prime Minister handled the announcement with a great deal of class, saying that he appreciated the judiciary’s show of respect for the parliament and that, as parliament also respects the judiciary, he would work with the National Assembly to move forward with the court’s request and review the article in question. This is how a properly functioning democracy works.

I do want to say a bit about the guiding principles that became such a hot topic over the past few months. While it is without question that there are certain guiding principles behind the constitution, these principles do not exist above the written law. Actually, the exist within it. Just as the spirit of a song exists within the melody and the lyrics, so also the guiding principles of freedom, independent judiciary, division of powers between branches etc etc etc exist within the written words and the judicial interpretation of the nation’s defining law – the constitution.

This, of course, raises the question as to whether the constitution could be amended to say things that are against these guiding principles of a liberal democracy. I think the answer is obviously yes – we have seen just such abuses perpetrated by past dictators, and we are still working to undo those abuses. Actually, this is part of the reason the 18th Amendment was passed unanimously.

But just as the abuses of a tyrant cannot break the spirit of the people, so they also cannot break the spirit of our constitution. If there any errors or abuses find their way in, we will remove them. But it is vital that we do so properly. We cannot set our hopes on the benevolence of any dictator – military, civilian, or judicial. By trusting each other and working honestly to resolve our concerns and our disagreements, we are the masters of our own fate. We are a democracy.