By K. K. Shahid
In mid-July, the Islamabad High Court (IHC), Justice Shaukat Siddiqui, asked the army chief and the Inter-Services Intelligence (ISI) chief to stop meddling in judicial affairs. By the month end, the Supreme Judicial Council had begun an investigation against Justice Siddiqui.
The Judicialization of Politics in Pakistan by Waris Husain is therefore aptly timed. It focuses on the overreach of the judiciary, keeping in mind the events of the ongoing decade, and juxtaposing it with the performance of the judiciary in the US and India.
The narrative, popularised by former Prime Minister Nawaz Sharif – not enough to win the elections last month of course – goes that the army and the judiciary collaborated to oust him and are working to undermine parliamentary supremacy. This, coupled with the aftermath of the lawyers’ movement and the undertakings of the ‘Chaudhry court,’ has brought the politicisation of the judiciary under the spotlight.
Waris Husain’s book looks into the Supreme Court as a dominant force in the country’s tripartite constitutional system and critically analyses its judicial reviews – most notably vis a vis the Parliament and the Prime Minister – since 2007. The comparisons with India and the US aren’t solely based on jurisprudence, but the development of judicial reviews in the three countries in question is scrutinised in detail, tracing the origin of the judicial systems to the colonial era. Two notable differences have been underscored with regards to comparing the American and Indian subcontinent colonies.
“First, while the American colonies were largely established and inhabited by European settlers, the Indian colony remained dominated by native groups that historically lived on the land. Second, the colonial period of rule in the American colonies was far shorter in time than British rule of India, which began in the late seventeenth century and extended up until 1947. On a spectrum of judicial activism today, the Supreme Court of Pakistan stands at one end, the United States at the other, and the Supreme Court of India takes a place somewhere in between.”
Beginning with the interventionism of the Supreme Court under Chief Justice (CJ) Chaudhry Iftikhar and culminating in the apex court’s impact on the elections last month, the book analyses the political developments in the country through the judicial lens. To begin with, it was necessary to arrive at a clear definition of the phrase, ‘judicial activism,’ despite the fact that there is general disagreement over its meaning. Waris Husain brings forth a multi-pronged definition that focuses on the court “willing to invalidate statutes,” “departing from text and precedents,” “changing public policy,” “asserting itself against an elected branch of government,” or “abusing unsupervised power.”
While contrasting the judicial progress in the three countries, the book highlights the influence of colonial courts, which were largely rejected in American colonies, but not in the Indian ones.
The influence of the British jurist, Lord Edward Coke, whose suggestion in 1610 that the courts had ‘the power to judge the parliamentary acts’ violation of natural laws, forms the heart of his theoretical influence in the judicial set-ups of all three countries.
The comparison of the constitutional structure of the countries is important – presidential in the US and a presidential-parliamentary system in India and Pakistan – even though all three countries, in theory, uphold constitutional supremacy over legislative supremacy. But with the book focusing on Pakistan, it reaffirms the socio-political factors that separate Pakistan from the other two countries, most notably the influence of the military.
How the three apex courts filter petitions is also an important discussion in the book, with the Pakistani Supreme Court’s generous use of suo motu notices narrated in detail, with the frequency of the action depending largely on the individual inclinations of the serving Chief Justice (CJ). For instance, CJ Sheikh Riaz took six suo motu cases from 2002 to 2003, while CJ Chaudhry took 123 between 2005 and 2013. Justice Chaudhry’s successors, Tassaduq Jillani and Nasirul Mulk, used the suo motu during their tenures from 2013 to 2014 less than ten times each. “While the United States Constitution limits the Supreme Court to decide “cases and controversies,” the Pakistani and Indian Supreme Courts can take up any issues relating to a fundamental right of public importance. This creates a much wider area for the courts of the Indian subcontinent to exercise judicial review.”
At the heart of The Judicialization of Politics in Pakistan is the comparison of three prominent cases in Pakistan, India and the US, where the Supreme Court dealt with the prospect of disqualifying heads of state/government and the contrasting manners in which each case was dealt with by the respective Supreme Courts.
While the top courts of India and the US exemplified restraint, Pakistan’s Supreme Court unilaterally disqualified serving premiers Yousaf Gilani and Nawaz Sharif, bypassing the parliamentary process for disqualification, which has been mandated by the Constitution. In Indira Gandhi’s case, the Indian Supreme Court of India demurred and dismissed the charges of corruption but overturned a constitutional amendment to justify emergency rule, while in President Richard Nixon’s trial, the US Supreme Court left the actual impeachment to the Congress.
“A comparison of the Gilani, Gandhi and Nixon cases demonstrates the need for Pakistan’s Supreme Court to structuralise and restrain its judicial review process, especially when it relates to the disqualification of a democratically-elected prime minister.”
Finally, the author advises the Pakistan Supreme Court to adopt a more self-restrained approach in cases pertaining to the civilian elected branches, by offering a standardised procedure which gives due consideration to Pakistan’s unique socio-political factors. The apex court is urged to amend the Supreme Court Rules, while calling for a commission to investigate changing the Rules and to establish the Justiciability Council. But the author cautions that while the move would mean the Supreme Court establishing its own institution for restraint, the Council’s creation would hinge on the CJ calling for it. “If the judiciary were to take this step itself, the often-repeated claim that any control exerted by Parliament over the Court’s exercise of judicial review endangers judicial independence could be invalidated.”
Lock, stock and barrel unconstitutional
By Shariq J Reyaz
The unfortunate legal and constitutional history of Jammu & Kashmir has been fraught with various acts – both direct and indirect, innocuous and dangerous, benign and malignant – that have consistently compromised the unique Constitutional position of the State.
The recent constitutional amendments and the consequent amending of the Jammu & Kashmir Reservation Act by the President by virtue of an Ordinance is an ex-facie unconstitutional Act.
There are two major legal arguments that have to be appreciated when it comes to the present constitutional amendments and the consequent amending of the State Act.
The first deals with the implications of Article 370 of the Constitution of India, and the second deals with the power of the President to amend a State Act (J&K Reservation Act in the present case) during the period of the proclamation under Article 356 (colloquially known as ‘President’s Rule’) of the Constitution of India.
The first argument is rather simple, and I have seen constitutional experts comment on it when they say that the Constitution of India does not apply to the State of Jammu & Kashmir of its own force, and has to be applied to the state by resorting to the rigors of Article 370 of the Constitution.
Article 370 provides a mechanism for application of the Indian Constitution to the State of Jammu & Kashmir. It can be done by a presidential order, which for its implementation requires the ‘consultation’ or ‘concurrence’ of the state government. The state government, for the purpose of Article 370, meant the Maharaja (now the Governor by amendment).
The upshot of the above is that every presidential order that applies any part of the Constitution to the State of Jammu & Kashmir, whether in a modified or amended form, requires the mandatory consultation or concurrence of the state government being the Governor acting upon the aid and advice of the Council of Ministers.
So, when the 77th Constitutional Amendment and the 103rd Constitutional amendment were hitherto not applicable are to be now applied to the State of Jammu & Kashmir, the ‘concurrence’ of the State Government is a prerequisite. Since the Assembly is dissolved and there is no Council of Ministers, the Governor, acting without the advice of the Council of Ministers, is legally incompetent to give such concurrence.
The usage of the words ‘acting on the aid and advice of the council of Ministers specifically assumes all significance because when the Article was drafted, it was done in a particular way to incorporate the mandatory views of the representatives of the State of Jammu & Kashmir, being the Council of Ministers.
The Constituent Assembly debates make it further clear that the Maharaja, who was otherwise the sovereign head of the state, had inducted a Council of Ministers by a royal warrant dated 05.03.1948 and vested all the responsibility of the government with such Council. The following excerpt from the Constituent Assembly debates takes the matter beyond the realm of doubt.
M GopalswamiAyyanagar, who proposed and debated Article 370 (then Article 306A), had, in the context of Council of Ministers and the Maharaja said that the Maharaja had “instituted a kind of responsible Government with a Prime Minister and colleagues who would own collective responsibility for their acts and regard themselves as jointly responsible for all the acts of the Government’.
The Maharaja then and the Governor now are merely nominated heads with no independent decision-making power when it comes to Article 370. Thus, today, the Governor (being the nominated head of the State), acting without a Council of Ministers, is legally incompetent to give any concurrence to the application of any part of the Constitution of India to the State of Jammu & Kashmir. The unilateral action of the Governor is insufficient compliance of Article 370 and is thus manifestly vitiated in law.
There is, however, a specious counter-argument that could have led the Governor to give his concurrence. A legally inept mind could have suggested to the Governor that by virtue of the President’s, Rule the function of the state government now vested with the President and such function includes the duty to aid and advise the Governor. Hence, if the function of the state government was delegated by the President to the Governor, the Governor by such delegation had subsumed the function of the government and could thus aid and advise himself for the material satisfaction of Article 370.
Such a proposition, as you must have gathered from the plain wording of it, is too grotesque to be accepted and would be alien to the working of a Constitution. It would certainly not hold up to judicial scrutiny, because apart from being legally incongruous, it patently militates against the rationale behind the incorporation of the Article in the first place.
The constitutional import of Article 370 is all too well known to make way for any such perverse argument. The importance of the aid and advice of the Council of Ministers being the elected representatives of the people of Jammu & Kashmir is what keeps the power grounded in the democratic realm, otherwise, the safeguard of Article 370 would have been a fool’s bargain.
If such aid and advice is directly or indirectly dispensed with, the decision would fall foul of the spirit as well as the letter of Article 370 and would hence be unconstitutional.
The second more egregious argument pertains to the fact that the President, after having issued a proclamation under Article 356 (‘President’s Rule’), has amended a State Act (J&K Reservation Act) by issuing an Ordinance under Article 91 of the State Constitution. There is absolutely no discernible method to this madness.
It must be understood that a proclamation under Article 356 falls under Part XVIII of the Constitution, which deals with ‘Emergency Provisions’. Such provisions are a departure from the general working of the Constitution where the state government and Union Government operate in different fields. Under the Emergency provisions chapter, there is a lot of overlaying in which powers of the state government and the state legislature can, in emergent situations, be drastically vested with the President and the Parliament.
However, the exact and the only mechanism and manner in which such things can be done is also specifically provided in the said chapter. Whenever President’s Rule u/a 356 is declared in any state of India, the functions of the state government vests with the President, and the power of the state legislature i.e. the power to make or amend laws for the state, vests with the Parliament of India.
That is to say that under President’s Rule, only Parliament can make/amend laws which otherwise the state legislature is competent to make/amend. So, in essence, right now, while Jammu & Kashmir is under President’s Rule, only Parliament could amend the J&K Reservation Act and no other authority could do that. The President is, by the express language of Article 356, precluded from exercising any power of the state legislature.
Article 357, however, provides a mechanism in which Parliament can delegate its newly acquired power of making/amending laws with respect to the state legislature to the President. That would require Parliament to pass an Act delegating its powers with respect to the state legislature to the President. When such an Act is passed, then and only then would the President have the power to amend the J&K Reservation Act, a State enactment.
The examples when in the past Parliament, while a state was under President’s Rule, had enacted a law to empower the President to make/amend laws for a state legislature are many. The Uttar Pradesh State Legislature (Delegation of Powers) Act 1973, West Bengal State Legislature (Delegation of Powers) Act, 1968, Madhya Pradesh State Legislature (Delegation of Powers Act) 1993, Tamil Nadu State Legislature (Delegation of Powers) Act 1976, are some of them.
So, for all intents and purposes, like every other state under President’s Rule, Jammu & Kashmir also should have had a J&K State Legislature (Delegation of Powers) Act, 2019 passed by the Parliament delegating its power to the President and empowering the President to amend any state law including the J&K Reservation Act.
While Parliament in its Winter Session approved the President’s Rule in January 2019, no such Act was passed delegating the powers of the state legislature to the President. Parliament, by doing no such thing while it was in session, kept the power with itself and in absence of any such delegation, vested no power in the President to even touch any state enactment leave alone amend it. There was no other way available in which such delegation of power could be achieved. If the President resorted to any other way to amend the J&K Reservation Act, it would be manifestly ‘unconstitutional’.
The President astoundingly and against all known legal canons issued an Ordinance under Article 91 of the State Constitution to amend the J&K Reservation Act. An Ordinance can never be issued for a state by the President during a period of proclamation under Article 356. It is an impossibility and has never been done for any other state.
The period of proclamation, as pointed out before, is an extraordinary situation governed solely by Part XVIII of the Constitution and the only mechanism that can be resorted to amend a state legislature is the one provided under Article 356 and 357.
The general provision of an Ordinance under Article 123 of the Constitution of India or Article 91 of the State Constitution is not countenanced as a mechanism to amend the state Act during a proclamation under Article 356. There cannot be any automatic assumption of power in the President on the pretext that the Parliament is not session. The express language of Article 356 precluding the President from assuming the power of state legislature and the express command of Article 357 mandating how such power can be delegated, would prohibit the President from usurping the power not belonging to him.
The power to make laws during President’s Rule is entirely different from the power of making laws through an Ordinance. They operate at different times for achieving different objects. One cannot be substituted for the other. It’s like chalk and cheese for the legally trained mind. The laws made during President’s Rule are qualitatively and constitutionally altogether different and distinct from laws made through an Ordinance.
What has happened in Jammu & Kashmir has absolutely no constitutional sanction. The entire act of giving concurrence by the Governor without the aid of the Council of Ministers and the act of the President amending the J&K Reservation Act through an Ordinance are lock, stock, and barrel, unconstitutional acts.
(The author is a practicing advocate. Source: Bar & Bench)
Chowkidar campaign a non-starter
By Bharat Bhushan
If Prime Minister NarendraModi is really winning, then why does he look like a loser? The inverted snobbery of claiming that he was nothing but a humble a watchman of the nation has now come back to haunt him. His usual genius in political marketing is not evident in his 2019 campaign for re-election, which seems unsure, and even confused.
Prime Minister Modi’s attempt to turn around the Congress accusation “Chowkidarchorhai” (the watchman himself is the thief) by calling himself the First Chowkidar of the nation simply isn’t pressing the right buttons. Neither is his social media campaign calling upon citizens to sign up as watchmen #MeinBhiChowkidar (I am also a watchman).
That he should have allowed this to happen is particularly curious since the 2019 general election is centred around him. The 2014 election was led by a wave of anti-Congressism across the length and breadth of the country. The Congress lost even in those states where it was not even pitted against the BJP, and the result was evident in the meagre number of LokSabha seats it won — 44, the lowest in its history.
In this general election, by contrast, the persona of Prime Minister Modi is the sole reference point for the voter. The electoral choices are clearly polarised by pro-Modi and anti-Modi sentiments. In the face of anti-incumbency against his government, Modi needs a positive vote in his favour. He needs to ignite his campaign, enthuse volunteers and swing the undecided voters.
On all these counts, his “chowkidar” campaign seems to be a failure. The sum and substance of Prime Minister Modi’s address to 25 lakh chowkidars earlier this week was still milking the sentiment of anti-Congress incumbency from five years’ ago. Only the right-wing Hindutva organisations have such a long and deep-seated hatred for the Congress version of nationalism. Normal citizens tend to have shorter memories and more immediate concerns.
Chowkidars are in fact a palpable reminder of public insecurity. A proliferation of citizen-chowkidars would underline the idea that the State is unable to protect its citizens. On top of that, security guards work in the most exploitative conditions. No one would actually aspire to their jobs, unlike, say, the glamour of being in the armed forces or snapping up a permanent government job.
The chowkidar campaign has also pushed into the background the chest-thumping nationalist narrative centred on Prime Minister Modi’s bombing of Pakistani territory. It had the potential to kick start his campaign and rouse his supporters. Has he concluded, however, that the war narrative is not working or is he floundering?
His re-election campaign has been flitting from one slogan to another. On January 20, he introduced a potential tagline for his campaign, quoting a dialogue from the Bollywood film Uri: The Surgical Strike, asking an audience of film celebrities in Mumbai: “How’s the josh (enthusiasm)?” His supporters replied: “Josh is very high Sir”! “How’s the Josh” was sought to be revived after the Indian Air Force dropped bombs in Balakot in Pakistan, and it trended for a while on the social media.
However, by the end of February, “How’s the Josh” was replaced by the slogan: “NamumkinAbMumkinHai (The impossible is now possible). Using data showcasing the government’s welfare schemes, full-page advertisements appeared in all the major newspapers. On March 14, finance minister ArunJaitley’s blog revealed that the tagline had been amended to “ModiHaiToMumkinHai (Because Modi makes it possible)”. Prime Minister Modi was packaged as a doer, making decisions and implementing them at an unprecedented pace.
But the Prime Minister’s detractors quickly unravelled this catchy campaign with counter-slogans: “Chowkidarkachorikarnanamumkintha #NamumkinAbMumkinHai”, “Chowkidar hi chorhaikyonki #NamumkinAbMumkinHai”. The social media was trending with bon mots such as that it was impossible to mislead the Supreme Court, but Prime Minister Modi had made it possible; and that it was impossible to loot `30,000 crores (the offset offered to Anil Ambani’s companies by Dassault in the Rafale deal) from citizens, but it had been made possible; it was impossible for Jay Shah (BJP president Amit Shah’s son) to increase his turnover 16,000 times, but that too had been made possible; it was impossible to take unemployment rate to a 45-year high but Mr Modi had made it possible; and to top it all “entire political science mein degree nammumkinthi par #NamumkinAbMumkinHai” in a direct dig at the controversy about the Prime Minister’s claim of having got a master’s degree in “Entire Political Science”.
Perhaps the BJP was at its wit’s end when its strategists suggested that the party take on the Congress’ allegations frontally.
However, the “everyone-is-a-chowkidar” campaign is not really uplifting for the voters. Whereas his “chai par charcha (discussion over tea)” campaign during the 2014 general election had projected the voter as having a role in framing the nation’s future, the chowkidar campaign lacks the same buzz.
Only aspirational campaigns have worked well the world over historically. In the United States, the taglines that have won elections included “Vote Yourself a Farm” (Abraham Lincoln, 1860), “A chicken in every pot and a car in every garage”(Herbert Hoover, 1928), “Happy days are here again” (Franklin Delano Roosevelt, 1932), “Change we can believe in” and “Yes we can” (Barak Obama, 2008 and 2012) and “Make America great again” (Donald Trump, 2016).
In India, aspirational slogans have worked very well in the past, such as “Jai Jawan Jai Kisan” (LalBahadurShastri, 1965 — although a mobilisational slogan, and not an election one), “GaribiHatao” (Indira Gandhi, 1972), “Indira HataoDeshBachao” (Jaiprakash Narayan, 1977), “Congress kahaath, sabkesaath” (Congress, 2004), and “Sabkasaathsabkavikas” and “Achhe din aanewalehain” a la Roosevelt (NarendraModi, 2014).
MeinBhiChowkidardoesn’t fit into the aspirational slogans that have swung elections in the past. Far from setting the agenda, this is a defensive campaign that at best diverts attention from the Opposition’s corruption allegations. It is unlikely that as a chowkidar, Prime Minister NarendraModi will be able to woo voters.
Tackling terrorism in Pakistan
By Imtiaz Alam
Bilawal Bhutto, otherwise seen as hawkish on India, seems to have attracted the accusation of subscribing to the ‘Indian narrative’ because of his demand to the government to go tough on the unfinished business of tackling proscribed terrorist outfits.
[The accusations by some PTI ministers against him may have reminded him of his diatribes against former PM Nawaz Sharif when the latter had tried to made half-baked overtures to ease tensions with India].
Ironically, in both India and Pakistan politicians accuse each other of speaking the language of the ‘enemy’. We see this in India too, where adversaries are blaming each other over the Pulwama attack. What Bilawal Bhutto is stressing is the urgency to effectively tackle terrorism; Prime Imran Khan himself has also talked about past failures in tackling this menace. Bilawal Bhutto has been very consistent against terrorism and has also rightly demanding a powerful bipartisan parliamentary body to oversee the full implementation of National Action Plan.
Meanwhile, China has – once again – put a hold on the designation of Jaish-e-Mohammed founder Masood Azhar as an international terrorist list by the UNSC. The move was initiated by France, US and UK who were supported by Russia, besides Germany, Australia, Japan, Italy, Belgium, Poland and Bangladesh. The UN’s 1267 Sanction Committee measures include asset freeze, travel ban and arms embargo on the listed terrorist outfits (and persons), including LeT and JeM. Pakistan, which has been placed on the grey list by the FATF, is legally bound to comply with these sanctions.
I don’t understand why Pakistan should carry the burden of opprobrium. Such a listing of Hafiz Saeed and his successive fronts did not make any difference and he and his successive fronts survived international sanctions and successive bans, embarrassing Pakistan’s official national stance against terrorism of all hues. Masood Azhar being listed would not have been of any consequence.
In recently-held National Security Council and corps commander meetings, Pakistani authorities have once again resolved to effectively tackle terrorism. The National Action Plan is being revisited and a countrywide operation is underway to take over the assets of 68 proscribed outfits and put their activists under protective custody. Such measures were also taken in the past but they failed to achieve the desired results. The proscribed organisations re-emerged with new names and continued to embarrass Pakistan. Their amirs or spiritual-cum-military chiefs refused to take a backseat as they tried to reinvent their outfits for mainstream politics and welfare platforms.
From the very beginning, they claimed credit for most of their acts, which in certain cases led to the derailment of efforts towards resumption of dialogue with India by successive elected governments. Now, we hear a lot about a paradigm shift and the Bajwa Doctrine for peace, reconciliation and ending terrorism as an instrument of state policy, as civil and military leaderships are said to be on the same page. This was demonstrated in the recent standoff with India.
When it comes to the FATF, though, we need to show the task force that we will not be lenient towards rogue elements, something we have officially vowed we will not do. Otherwise, who will take us seriously? Despite undertaking successive kinetic counterterrorism campaigns and reaching a national consensus on NAP and repeatedly expressing our national resolve to not let our territory be used for terrorism against other countries, we continue to take international denunciations for our lapses. We have yet again launched a campaign against 68 proscribed organisations without, however, clearly knowing how to root out or reform them. And this is what Bilawal Bhutto is lamenting – and being wrongly accused in the process. For our national interest and future as a prosperous nation, we need a consistent strategy to root out all kinds of good or bad terrorists.
Extremist ideologies and militias were allowed to flourish for too long without giving any serious thought about their far-reaching adverse consequences. Given the past exigencies, the international community still suspects our intentions, despite the enormous sacrifices rendered by our people and our valiant soldiers in the nation’s fight against terrorism. Terrorist groups in Pakistan seem to be confused over their diminishing role. If at all they once served some limited purpose – at a great loss – they have now become totally counter-productive. Out of desperation, some of them have been playing the role of agent provocateurs and are desperately trying to make the state a hostage of their anarchist ideological designs. They have the potential to push Pakistan into an open conflict with India, Iran, Afghanistan, the US, China, Europe and the world at large.
Such elements will have to be dealt with full force. But, there are those who seem to be ready to submit to the law of the land and adopt a peaceful way of life. They have to be disarmed, re-oriented and provided with alternative means of peaceful living. While demolishing their networks, confiscating sources of funding, closing ideological and armed training centres/madressahs, they have to be absorbed in various civil subsidiaries of the state. While the experiment of their political mainstreaming was misused and has backfired, they may be allowed to have lawful political associations without the burden of their jihadi leaders.
On the other hand, regardless of the Indian obsession with Masood Azhar or Hafiz Saeed, the real issue is that of eradication of terrorism within and across our borders. The Indo-Pak military standoff has now metamorphosed into a vociferous electoral battle in India over the dividends of the surgical strikes (or the lack of them), and ridiculous point-scoring over the larger-than-life Masood Azhar. We should let the Chinese sort out this matter with India. To Modi’s dismay, Masood escaped the UNSC’s terrorist label. This has provided the Indian opposition another excuse to expose the BJP government’s yet another failure after the doubtful gains of surgical strikes against Pakistan.
As Modi drums up aggressive nationalism and takes a warrior path in his election campaign, Congress leaders and regional adversaries have joined hands in belittling his questionable military gains while dubbing him as the follower of the killer of Mahatma Gandhi. But there is no meaningful discourse on India’s future course towards Pakistan and the growing unrest in Kashmir. On the other side, Pakistan struggles to assure a suspecting world regarding its to-be-tested resolve to put an end to the use of its territory for terrorism against any country, India in particular.
Most of the media and public opinion leaders and makers were carried away by their respective national narratives, leaving little space for saner elements to register their dissent across the Subcontinent. As the four-week tension somehow recedes, voices of peace are emerging to address the most pertinent issues facing the future of the region. With the resumption of talks on the Kartarpur Corridor, it is time to revisit security paradigms, contain religious extremism and terrorism and explore out-of-the-box solutions to our disputes and differences. Let’s not allow non-state actors and jingoists play havoc with the destiny of our own Subcontinent.