Faisal Naseem Chauhdry
Over the last two years, the most frequent as well as favorite jingles that have been repeatedly pounding the ears were ‘basic structure’ of the Constitution, and ‘morality’ of Parliamentarians. The erstwhile President of the Supreme Court Bar Association had also been making noteworthy contributions in this chorus which further contributed to the disintegration and decay of Professional Group, mainly a Group from Lahore with twenty years of extreme hardwork put in by Mr. Hamid Khan. Unexpected outcome is not tragedy. Tragedy is when you know that a certain strategy will lead to disaster but you can’t help yourself and keep marching in that direction.
In the field of law, we come across different judgements authored by different judges on a variety of topics not confined to law alone. One such judgement was tendered by a Five Member Full Bench of Lahore High Court in 1988 cited as ‘PLD 1988 Lahore 725’ i.e. Khawaja Muhammad Sharif vs. Federation of Pakistan. The incumbent Chief Justice of Lahore High Court was a Petitioner at that point of time. The contentions, arguments, and the prayer raised in the Writ Petition forced the then Honourable Chief Justice A. S. Salam to deal with the definition of morality in the backdrop of dissolution of assembly by General Zia in exercise of his powers under repealed Article 58(2)(b) of the Constitution.
Zia had dissolved the Assembly and Jonejo Government on the basis of four allegations; the fourth one was the ‘deterioration of public morality’. The Court did not set aside the Dissolution Order primarily on the ground that new elections had been announced and there was no point in reversing the electoral process, yet it dealt with all the four allegations one by one thereby holding that no good ground existed for the dissolution of the Parliament.
On page 760 of the above-referred judgement, Mr. Justice A. S. Salam, the then Chief Justice of Lahore High Court, observed as under:
“The fourth and the last ground given was that ‘public morality has deteriorated to an unprecedented level’. It may be noticed that from time immemorial and even since before Moses it was stated that the standards of morality have gone down. Over the centuries, one lac twenty four thousand prophets came when standards of morality had gone down to bring them up. God has given up sending prophets since one thousand and four hundred years and let the people look after themselves. Elders of earlier generation have said that standards have gone down but people led their lives according to what they thought to be normal. Therefore, on such a general ground which keeps changing from generation to generation, drastic action of dissolving the highest representative legislative body can not be upheld. The established law is that even if one ground is wide, vague, general, non-specific or non-existent, the whole order has to fall.”
Above speaks for itself and one does not need to elaborate it any further. This is unbelievable how established principles of law change course in Pakistan, one landmark judgment throwing out earlier landmark judgement. Yet as Ramsey Clark observed subsequent to dismissal of Bhutto’s Appeal by the Supreme Court that ‘history will judge the judges’; likewise only history will judge if Justice A. S. Salam’s elucidation of morality is going to hold the field or the narrative that we are bumped into with these days.
I have not been to the Honourable Society of Lincolns Inn, nor to any Law College in the Province of Sindh. Therefore, my highly questionable understanding of the Basic Structure of the Constitution is not confined to the interpretation presented by Indian Judges in Kesavananda Bharati case. Why should we look at an isolated Indian Judgement while keeping eyes shut to the other wonderful consistent jurisprudence developed by the same Indian Jurisdiction? The simplest mode of finding the Basic Structure of the Constitution is by looking into the Constitution itself. The preamble says that the sovereignty over the entire universe belongs to Almighty Allah and the authority is to be exercised by the people of Pakistan within the limits. It necessarily means if sovereignty or authority is to be exercised only by the people of Pakistan then the people of Pakistan are being represented by the Parliament of Pakistan, and by no other institution. Article 3 talks about the elimination of all forms of exploitation which essentially indicates that all two million cases including Shahid Orakzai’s Petition shall be decided in Courts of Law on merit and for no other consideration leading to exploitation. Article 4, further supplemented by Article 25, holds that it shall be inalienable right of every citizen to enjoy the protection of law and to be treated in accordance with law. It entails that the cases against Provincial Government(s) and Office Bearers shall be taken up with the same vigor and velocity which is accelerated in case of a Federal Government and its Office Bearers. The term ‘equal protection of law’ further leads to the opposite connotation i.e. ‘equal wrath of law’ which again denotes if Ahmad Riaz Sheikh was to be arrested from the premises then why Rana Maqbool had a better fate once his appeal was dismissed. Above all, the notion of ‘dignity of man’ enshrined in Article 14 of the Constitution is my Basic Structure of the Constitution, which needs to be jealously guarded whenever this dignity, including that of a lawyer, is violated either by a Police Officer or by a Judge.
For sixty three long years, we allowed the institution of judiciary to continue functioning, either under the oath of Constitution or under the oath of PCO. The latter merely clipped some of its jurisdiction primarily under the law of writs. Apart from those specifically curtailed powers, the judiciary enjoyed all other Original, Appellate, and Administrative powers even while working under a PCO Oath. It further continued enjoying its process of evolution as well as lucrative perks attached to the office of a Superior Court Judge. Even the moment a Constitution was abrogated or suspended, the institution of judiciary was granted an immediate permission to come to office next morning leaving behind few individual judges. This continuity is not without significance. Notwithstanding its own glorious past overstuffed with cases like Tamizuddin, Bhutto Trial, and Zafar Ali Shah, the institution was allowed to develop itself through a ongoing process which led us to the present day scenario wherein it is generally believed that we have an ‘independent judiciary’. The incumbent ‘independent judiciary’ is not an outcome of five years’ progression analogous to the term of five years granted to an elected Parliament. It took sixty three years. Without this element of stability and steadiness, the process of growth including the intellectual one, the process of making mistakes and then learning from them can not take place. We could have a better Parliament today if it had the privilege to work without hindrance in the past, but whatever we have today is certainly an outcome of fairly reasonable electoral process of 2008. There has to be a starting point, if not today then may be after some more years of useless living in a parliamentary democracy.
The continuity of Parliament is indispensable for healthy growth of the state itself and all its three pillars. Corruption is number one problem of this country yet the Parliament does not directly commit this crime. It is always the Executive, Federal as well as Provincial, which is responsible for making this social evil almost a part of day to day life. The Media and Judiciary could do wonders in this country subsequent to 2008 Elections yet both adopted an imprudent strategy. One highlighted only what it wanted to highlight; the other punished only whom it wanted to punish. This is why people have questions today. None would censure the judicial scrutiny of Rental Power Contracts; after all there is public money involved in it. Yet one hardly understands why Sasti Roti Scheme is considered so crystal clear particularly when the Auditor General of the Province has already breached the veil of transparency. There is irrefutable intellectual dishonestly involved in the appointment of former Chairman OGDC, yet the same can also be found in the selection of Secretary Prosecution for the Government of Punjab. One is less educated; other is full fugitive. Yet again the Sword of Damocles enjoys the decision-making privilege which head to chop off. These are the questions which give birth to more questions and in this jungle of questions, one is finally haunted by Article 204 of the Constitution no matter the conflicting views of Lord Denning i.e. ‘The dignity of Courts must not rest on the sandy foundations of Contempt Law’.
History of Pakistan enlightens us that whenever there is acute social or political turmoil in the country, that leads to another ‘immoral extra-constitutional step’ which is legitimized by another ‘immoral judgement’ followed by another ‘immoral authentication by a Parliament’ manufactured by a Military Man. For ten following years we wait for a ‘moral democracy’ and when it arrives, few ‘idols of morality’ determine that merely because some ‘immoral individuals’ have managed to reach the Parliament so let the ‘moral Bengali Formula’ come to Pakistan. For one’s own benefit, there is ‘moral’ principle of ‘past and closed transactions’; or the ‘moral’ fiction namely ‘deemed to be’; or the ‘moral’ debate involving ‘de facto and de jure’; or the slogans of ‘free media’ although the element of bias, prejudice, and personal agenda oozes out of certain Media Houses. For others there are gallows. This is utterly deplorable, and this is the basic structure of the morality brigade.