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Legal Eye

February 10, 2019

De facto vs de jure


February 10, 2019

This week doesn’t call for commentary on the state of our bigoted politics, our civil-military imbalance, the chasm between the de facto and the de jure, and the contagion of self-righteous saviours that we are yet to find a cure for.

One only needs to read and understand in context the judgment rendered by the Supreme Court in the TLP dharna case. At a time when one cannot even sing a lament for rule of law, the lasting contribution of this judgment authored by Justice Qazi Faez Isa will be its dispassionate account of what so many see but can’t utter.

This isn’t a court oblivious to the limits of its authority. It states that “those in government on 12th May, 2007 (when unarmed citizens were massacred) or those who extended support to the Faizabad Interchange mob (who disrupted civic life and destroyed property) are today in coveted positions at the highest levels of government. While the general moral decline and loss of political and religious values can only be commented upon we have not lost sight of [the] parameters of jurisdiction of this court under Article 184(3).”

For months we were told how the amended language of the MPs’ oath was a conspiracy to rob Pakistan’s Islamic identity. Anyone who tried to understand the controversy clearly saw how inconsequential the change was. But the country was torn apart in the name of religion and the PML-N lost precious Barelvi vote. The SC notes that, “Parliament had resolved the misgivings with regard to the language of the declaration (on 19th October, 2017), however, the Tehreek-e-Labaik Pakistan (TLP), a recently formed political party, continued to protest.”

The SC records that, “leaders of [the] dharna intimidated, hurled threats, abused, provoked and promoted hatred. The media provided unabated coverage to TLP. Anyone having a grouse against the government joined in… Inflammatory speeches were delivered by irresponsible politicians. Some unscrupulous talk-show hosts incited and provoked citizens.” One recalls that in the midst of madness, ISPR had tweeted thus: “COAS telephoned PM. Suggested to handle Isb Dharna peacefully avoiding violence from both sides as it is not in national interest and cohesion.”

The Sc further notes: “On 25th November, 2017 the law-enforcement personnel used tear gas and water cannons to disperse the protestors, but failed, and gave up after a hundred and seventy-three of them suffered serious injury”. And that “the government then invoked Art 245 of the constitution and sought the assistance of the army. But before the army was deployed the matter was resolved between the government and the protestors on the night of 26th November and TLP and its supporters, who received payment from men in uniform, dispersed.”

In trying to understand the evolution and source of funding of the TLP, the SC “sought additional information from Pemra, the Ministry of Defence and the ISI on 19th March, 2018 and on 24th April, 2018. Inexplicably, the case was not fixed again for over five months.” Interestingly, the time during which the case wasn’t fixed by the then CJP Justice Saqib Nisar was the period leading up to Election 2018, wherein the votes polled by the TLP probably affected election outcomes in 25-30 constituencies in Punjab.

The SC highlights factors that facilitated the TLP’s exponential growth: “Intelligence agencies reported that politicians visited TLP’s leadership camped on the Faizabad Interchange. TLP received prime-time free media coverage and publicity, transforming it overnight into a household name. Two of its candidates got elected as members of the Sindh Assembly and TLP got a sizeable number of votes in the 25th July general elections.” It is no secret that after Panama, the TLP and its dharna caused grievous damage to the PML-N in Election 2018.

“[The] Election Commission’s report states that TLP did not provide information about its funding despite repeatedly directing it to do so”, notes the SC. The court also holds that, “Article 17 (3) of the constitution requires political parties to account for the source of their funds and section 211 of the Elections Act, 2017 demands that details of election expenses be provided. The Election Commission confirmed that TLP did not account for its funds and election expenses, but, surprisingly, professes its helplessness because the law according to it is cosmetic in nature.”

Why does the writ of the state keep getting battered in Pakistan? The SC explains: “TLP must have noted that despite daylight slaughter of innocents on [the] streets of Karachi on 12th May, 2007 its principal conspirators and beneficiaries were not punished. They must also have noted that when PTI-PAT had camped in the Red Zone for several months they had achieved the setting up of a judicial inquiry commission. Though the findings of the Inquiry Commission had rebutted PTI’s allegations no adverse consequences followed. PTI’s leadership did not even tender an apology...”

Reading the judgment one can trace a tale of two Pakistans: one for TLPs and another for a few other political movements. The SC holds that “citizens have the right to peacefully protest and hold demonstrations and may do so against any action or decision of a government or authority.” Yet we see our colonial laws being used to the full extent to thwart peaceful protests and label their members as traitors. The SC says: “The right of assembly is recognised as a right to preserve the democratic order, but it cannot be used to overthrow a lawful government”. And yet we saw how the TLP was pampered.

The court records that, “[The district magistrate of the Islamabad Capital Territory had written a letter to the TLP leadership stating that an order had been issued under section 144 of the Criminal Procedure Code, which prevented public gatherings… TLP’s leadership paid no heed to the district magistrate’s letter, yet no prosecution was launched against them in this regard.” But only this week civil society activists were picked up and jailed for protesting the death of Arman Luni. Gulalai Ismail, a young woman activist, was kept in detention for 30 hours.

After being released, Gulalai thanked PM Imran Khan for intervening to have her released. Federal Minister Dr Mazari also reportedly threw her weight behind Gulalai’s release. Here is the curious bit. If the district magistrate or DC, who is vested with powers of arrest under the Maintenance of Public Order law, didn’t order Gulalai’s arrest or detention, and neither did IK as PM or interior minister (who instead directed to have her released), on whose order was a peacefully protesting women detained for 30 hours? Who was calling the shots?

In its ruling, the SC has also acknowledged the elephant in the room. It notes that not only did Pemra take no action against channels promoting the TLP’s hate but “Pemra also failed to protect the legitimate rights of its licensed broadcasters. Broadcasts by Dawn and Geo television channels were stopped/interrupted; complaints stating this were acknowledged by Pemra. Dawn and Geo were particularly targeted in the cantonment and DHA areas of the country, which too was confirmed by Pemra. But, sadly, Pemra looked the other way.”

According to the SC, “Overt and covert censorship is unconstitutional”. And “Nebulous tactics, such as issuing advice to self-censor, to suppress independent viewpoints, to project prescribed ones, to direct who should be hired or fired by media organisations is illegal… Those who resort to such tactics under the mistaken belief that they serve some higher goal delude themselves.”

The judgment ends with various directions including that “all intelligence agencies.… must not exceed their respective mandates…To best ensure transparency and rule of law it would be appropriate to enact laws which clearly stipulate the respective mandates of intelligence agencies.”

But the best advice from the SC for members of our power elite is this: “When institutions stay within their designated constitutional boundaries and there is an effective system of check and balance, citizens stay safe and the state prospers. The trouble starts with self-proclaimed-saviours…”

The writer is a lawyer based in Islamabad.

Email: [email protected]

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