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| May 7, 2006 | Sunday | Rabi-us-Sani 8, 1427 |
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Naushad
Under the shadow of ‘doctrine of necessity’: The state and judicial idealism-II
THE next important milestone in the drift of constitutional governance in Pakistan is provided by the Dosso case. The case had striking features. It consisted of a set of routine criminal appeals. The hearing was confined to two days alone.
THE ruckus created in three Sindh universities by the HEC’s move to freeze their grants speaks volumes about how universities are run these days. The Karachi University, the NED University and the Sindh University are being penalised for allegedly not following the rules in the matter of appointments and promotions in their faculty. The Karachi University has appointed 18 non-PhDs to posts of professor and associate professor. The HEC considers these appointments to be in blatant disregard of its directives, even though the posts were advertised in 1999 and the selected candidates fulfil the criteria then laid down. The appointments have been made with the approval of the statutory bodies of the university — the syndicate and the academic council. Since the eligibility rule requiring only PhDs to be appointed to the higher posts came in later, the university bodies consider the appointments to be valid. It is a different matter that it has taken the university administrations five years to fill these vacancies after they were advertised.
This deadlock between Islamabad and the universities is most unfortunate. One can understand the HEC chairman’s efforts to raise the standards of university teaching. One also appreciates his ambition to bring at least a couple of institutions in the country to a level where they can be counted among the world’s top 500 universities. But the way the HEC is going about its plan, there is the danger of the public sector higher education system being paralysed. The need is to devise a method whereby the key goal of the HEC — to introduce excellence in university teaching — is actually achieved, keeping in view the ground realities which cannot be changed overnight. There is also the need for the HEC to remember that autonomy is the basic prerequisite for a centre of research and higher learning if it is to function effectively and maintain academic standards.
Keeping all this in view, it is clear that the HEC should not act in haste to bring about the reforms it is aiming at. For instance, the Karachi University has 138 posts of professor and only 80+ are PhDs. It is not possible to change this situation overnight. Indeed, it would be unwise to start mass producing PhDs to fill these posts. The main criterion that must be kept in mind is that more than quick-fix degrees what is needed is knowledge and academic excellence in persons applying for a high-level post. The HEC is going too much by the letter of the rules it has drawn up and is even overruling the opinions of the statutory bodies of the universities, namely the syndicate, the senate, the academic council and the Board of Advanced Studies and Research that normally take the basic decisions in such matters. There is also the impression that the HEC after having failed to win acceptance for the Model University Ordinance in the major institutions of the country is now trying to introduce it piecemeal. Some of the provisions of this ordinance need to be fine-tuned and adapted to the ground realities in Pakistan. The HEC would do well to identify the areas where changes are needed. It should seek an understanding with the different universities on the changes that are practical and desirable and then leave it to them to carry out the reforms gradually so that no major disruption is caused.
MR Shaukat Aziz’s call for the economic integration of the ECO region with emphasis on free trade, energy and transport comes against the background of the looming threat of a US-Israeli attack on Iran over the nuclear question. Speaking at the ninth summit conference of the Economic Cooperation Organisation in Baku on Friday, the prime minister said that the 10-member grouping was well-placed in terms of its economic potential and could become a hub of the world’s energy supply, provided it developed its transportation system so as to facilitate trade, development and people-to-people contact. ECO is a large grouping and some of its members are rich in oil and gas. It goes without saying that the fortunes of the region’s people could get better if even a fraction of these energy resources was tapped by the ECO nations themselves. However, experience with similar regional groupings of which Pakistan is a member does not hold out much hope.
Along with Iran and Turkey, Pakistan was once a member of the Regional Cooperation for Development, but during its nearly one and a half decades of existence, the RCD achieved nothing. Most of its plans remained on paper, and there was not even one project which could be cited as an RCD achievement. Pakistan is also a member of the South Asian Association for Regional Cooperation, but Saarc has been nothing more than a debating forum since its founding in 1985, basically because of the political problems between two of its largest members.
ECO states have no problems of that sort, and they can achieve a lot provided they set themselves seriously to the task of forging greater regional cooperation. There is no doubt that the threat of war over Iran’s nuclear question serves to create a feeling of uncertainty and inhibits inter-state economic cooperation. But one hopes that saner counsels will prevail and the issue will be solved peacefully. Once this problem is behind us, the ECO nations must infuse a new spirit into the grouping and remove the hurdles that at present stand in the way of regional cooperation.
NAUSHAD Ali, who died in Mumbai on Friday, gave immortal music to Indian cinema and his influence transcended national frontiers. He held four generations in thrall. The first film for which he composed music was Prem Nagar in 1940, but the first film which brought him recognition was Sharda, released in 1942. It may be of some interest for readers in Pakistan to know that Naushad made his debut as assistant music director in the Punjabi film, Mirza Sahiban in 1937. In 1944, he worked for the film, Ratan, and was paid Rs 25,000 as what was then the highest payment ever made to a music director. There was no stopping Naushad after Ratan and hit followed super hit. He composed music for such blockbusters as Anmol Gharri (1946), Shah Jehan (1946), Dard (1947), Maila (1948), Andaz (1949) and so on down the years to Baiju Bawra, to Mother India (1957), Mughal-i-Azam (1960) to Pakeeza (1972). The last film for which he worked was Taj Mahal, released last year.
Such was the affection in which he was held by the best exponents of classical music that when he requested Ustad Bare Ghulam Ali Khan and Ustad Ameer Khan to sing for him in Mughal-i-Azam, they obliged. It is said of Naushad that he repeated his compositions in film after film. This is rather unjust. Brought up in the classical tradition, he preferred some ragas over the others. It was only natural that his likes and dislikes should show in his work. No greater tribute can perhaps be paid to him than that by the Indian Prime Minister Dr Manmohan Singh, who said: “Despite being an uncompromising stickler for the grammar of classical music, Naushad Sahib also had an amazing grasp of the popular mood.” Hence the bhajan, Mohe Pannghat pe Nand Lal chhair gayo re. Naushad is dead but his music will continue to inspire millions in South Asia who still have an ear for tunes which stir the soul.
A few weeks earlier on October 7, 1958, President Iskander Mirza had abrogated the constitution of 1956 and dissolved the national and provincial assemblies. During the course of hearing of these routine appeals the court validated the military takeover by holding that a successful coup d’etat is a valid method of changing a constitution. The leading judgment runs to a mere six pages. The court did not consider it necessary to seek the assistance of senior counsel as amicus curiae.
The Begum Nusrat Bhutto case which validated the seizure of power by General Ziaul Haq was based on the judgment of the federal court in the governor-general’s reference of 1955. Once again, there was no dissenting judgment. The judgment records the request made on behalf of the petitioner that since the CMLA had already reneged on his commitment to hold elections within 90 days a specific time frame should be fixed. It was conceded on behalf of the government that a period of about six months would be taken for the process of accountability and thereafter the elections could be held within two months. The executive conceded, but the judicial pen still wavered — no time frame was fixed. Instead, the court portentously recorded its expectation that the period of constitutional deviation would be of as short a duration as possible.
Subsequently, the 90 days stretched to 90 weary months under the gaze of the court. One of the learned judges, consenting with the judgment of the chief justice, hastened to quote Quranic verses to support the military usurpation of power. He solemnly recorded his conviction that “the doctrine of necessity is not therefore a juristic concept of the West but is of Islamic origin...”
Reliance was placed by him on the verse of the Holy Quran which permits a Muslim, in a state of dire necessity, to eat the flesh of swine. What this personal exemption to prevent a man from starvation has to do with the doctrine of state necessity in terms of which a military junta can invade and displace the rights of the people of a state is not immediately apparent to a dispassionate observer. Nor does the learned judge appear to have realised the inadvertent corollary flowing from his argument, namely, that he was virtually equating the imposition of martial law with the eating of swine.
The next stage of this saga of judicial approbation for extra-judicial actions is to be found in the Zafar Ali Shah case in which the military intervention of October 12, 1999, was validated. The judgment has a pervasive sense of deja vu about it. It faithfully follows the contours of the Begum Nusrat Bhutto case and disregards the key difference, namely, that in the earlier judgment the contention was that the election of 1977 had been rigged to the point of being farcical and hence there was no constitutional governance prevalent in the country immediately prior to the take-over.
In the Zafar Ali Shah case the ground realities were different. The country was peaceful and the Pakistan army was not involved in an armed conflict either in the tribal areas or in Balochistan at that time. Nevertheless, a bench of 12 judges unanimously came to the conclusion that the intervention of the armed forces was to be validated on the basis of the doctrine of state necessity — plus ca change. The chief of army staff was conferred the power to single-handedly amend the constitution. This was considered necessary “for the welfare of the people.”
Thus the doctrine of state necessity was extended from being a validation for past illegalities to being a charter for future violations as well — as was also done in the Begum Nusrat Bhutto case. It was a classic case of the donor giving that which he did not possess and the donee accepting that which he was not entitled to.
Although 12 judges unanimously agreed to validate military rule it would not be correct to say that there was no dissenting judgment. There were six dissents, inscribed not in writing but by actions. Six judges doffed their robes of office, donned the mantle of dignity and silently departed from the portals of the court for the last time.
In any consideration relating to the functioning of the Supreme Court it is important to bear in mind the duality of powers passed by the court. The first and by far the most important, power of the court relates to its constitutional jurisdiction. This power operates in three concentric areas.
At the first, and most basic level, it is the foundational power which determine questions such as the legitimacy of the government and the constitutionality of its functioning. These are the primary questions which are determinative of the courts standing and prestige within the country. At a second level is the power in terms of which transfer of power takes within the given constitutional framework. This is, for example, a power exercisable for and in relation to electoral disputes.
At a third level are all other cases involving disputes between citizens and the apparatus off the state. These are essentially in exercise of the jurisdiction in terms of which the court controls and regulates the functions of all other organs of the state. This is the power most frequently exercised and it is critical to the functioning not merely of the judicial system but also the exercise of all executive, statutory or legislative power within the country.
The point may be clarified by a simple illustration. No government can function without the availability of financial resources. The government therefore levies taxes which are collected under the aegis of the Central Board of Revenue. Exertions made by the CBR are, therefore, appropriate. On the other hand, it is the countervailing legal right and entitlement of every citizen to resist the imposition of fiscal levies save and except in strict conformance with the law. The levy of a tax constitutes the deprivation of a citizen’s property and every citizen is entitled to oppose such a levy while remaining within the framework of the law. Here, therefore, are two colliding rights which are inherently in conflict with each other. These conflicts are to be resolved constitutionally through the judicial mechanism.
A constitutional court like the High Court or the Supreme Court is the balance wheel which regulates the functioning of the intricate mechanism which constitutes the operations of the government in interaction with the rights of citizens. For the Central Board of Revenue to be zealous in the collection of taxes is commendable. The function of the court, however, is to hold high the scales of justice. If the scales of justice tilt on one side, or the other, the results can be profoundly deleterious to the functionality of the constitutional mechanism.
Indeed, sometimes, paradoxically, an undue zeal on the part of a court in relation to the collection of revenue can actually lead to a fall in revenue collection. It is widely believed that a majority of tax collecting officials are of dubious integrity. It is estimated that the number of disputes between the taxing departments and the taxpayers which eventually end up in a court of law is minuscule — all the others are resolved out of court — often in an underhand manner. It is, therefore, of extreme importance that taxpayers should be discouraged from resorting to these unscrupulous tactics for which confidence in the perception of the impartiality of the judicial process is therefore critical.
The other disparate jurisdiction of the Supreme Court (apart from its appellate powers) relates to public interest litigation which is sometimes exercised suo motu i.e. on its own initiative. Such an exercise of power is inconceivable in countries like England or America where the jurisprudential hallmark of judicial power is that it has to be invoked by an aggrieved person. However, in countries with a weak or non-existent tradition of civil liberties this is an important function of the court and, particularly in recent months, the Supreme Court has played a vital role in curbing police excesses which the executive branch of the state has failed to check.
Constitutional courts are judged, in the final analysis, in relation to the exercise of their primary functions. In the Kesavanandi Bharati case (in which the Indian Supreme Court developed the theory of the basic structure of the constitution), the case was heard for a continuous period of five months by a bench of 13 judges. The United States supreme court and the House of Lords in England typically decide during the course of a year not more than one or two hundred cases. The Pakistan Supreme court of course decides more than that number in an average week or two.
Returning to our basic question, why are dissenting judgment important? The question can also be approached against the wider mosaic of the historical evolution of societies. Traditional societies often suffer from hierarchical structures which have ossified with the passage of time. Undue importance is attached to seniority. Open societies have intellectually vibrant cultures where ideas compete and divaricate on a level playing field. It is the clash of ideas and not of arms that leads to intellectual advances in every field of human endeavour. There is of course no conceivable a priori reason why there should be conformity of thought regarding the great constitutional, social or economic issues of the day.
Originally the vast majority of judgments in the US Supreme Court were unanimous — today it is the other way around. Unanimous judgments are uncommon. In Pakistan, of course, the overwhelming majority of judgments are still unanimous.
Perhaps, we can leave the last word on judicial dissent to former Chief Justice Hughes of the United States who, in words of soaring eloquence, observed: “A dissent in a court of last resort... is an appeal to the brooding spirit of the law, to the intelligence of a future day, when a later decision may possibly correct the error into which the dissenting judge believes the court to have been betrayed.”
Concluded