No power is unfettered

September 05, 2019


I.A. Rehman
I.A. Rehman

THE mystery surrounding the removal of three judges of special courts remains unresolved and is throwing up critical questions about the government’s respect for the rule of law.

The reversion of the three judges last month to their previous positions might not have attracted much attention if two of them, Mushtaq Elahi and Naeem Arshad, had not been hearing, as judges of accountability courts, cases against the Sharifs, and the third judge, Masood Arshad, had not been hearing the narcotics case against Rana Sanaullah.

The defence lawyers in the last mentioned case shouted ‘foul’ and so did the PML-N. What fuelled unsavoury speculation was the fact that the narcotics court judge was about seven months short of completing his three-year term, and the accountability court judges had been appointed only 70 days earlier, and that no reason was given for their removal except for the federal law ministry’s authority to take the action under reference.

For some time, it was not clear whether the law ministry had consulted the chief justice of the Lahore High Court on whose recommendation these judges had been posted to special courts. An explanation in bad taste was that a message had been sent to the LHC on Aug 26 and that it should have reached the chief justice.

The government’s sole defence was that it enjoyed the requisite power to recall the judges.

Later on, it was revealed that the law ministry had informed the LHC in July 2019 about the judges’ reversion, and it was only after its concurrence a month later that the action against the three judges was notified. Whether any reasons were conveyed to the chief justice of the LHC is not known. There is no indication either that the judges concerned were given the right to hearing. The government’s sole defence of its action was that it enjoyed the requisite power to recall the judges.

The government position reminds one of the advice William Makepeace Thackeray, a contemporary of Charles Dickens, had given to young novelists. It was possible, he said, that the central character in a plot died after being hit by a brick that accidentally fell from a roof while he was passing through a lane, but it was advisable not to build a plot around such accidents. The advice is valid for all official spokespersons who justify government actions on the sole ground that they were taken by competent authorities. They are not bothered about the question of whether the government’s authority has been legitimately exercised or about the fact that no state functionary has unfettered powers.

But citizens with long memories are assailed by doubts about the government’s refusal to explain its motives. The case of justice Sheikh Aftab Husain comes to their mind. He was in the good books of General Ziaul Haq for having authored the LHC judgment that awarded the death sentence to Zulfikar Ali Bhutto. He was made chief justice of the Federal Shariat Court. When Gen Zia learnt that he was going to give a verdict about rajam (death by stoning) that was not in accord with the dictator’s version of Islam, justice Aftab Husain was summarily transferred to a high-sounding clerical position in a federal ministry. The sole explanation for one of the most blatant violations of the judiciary’s dignity and independence was this: Gen Zia had the power to send the chief justice of the FSC packing.

It will be in the government’s own interest if a satisfactory explanation for the summary repatriation of the three special courts judges can be offered.

If the possibility of the government’s discovery that the three judges had somehow rendered themselves liable to withdrawal from their assignments is examined even in passing, a host of questions about the selection of such judges, the system of overseeing their performance and the value of their judgments will arise that might not be easily answerable.

The use of power to decide matters arbitrarily is also exercised in other departments of governance. The most striking example is the jail authorities’ denial of access to prisoners.

Lahore’s Joint Action Committee for People’s Rights is an alliance of 33 civil society organisations, including such highly reputed entities as AGHS, Ajoka, Minorities’ Alliance, ASR, Aurat Foundation, CSJ, DCHD, Digital Rights Foundation, HRCP, Sahe, Shirkat Gah, Simorgh, SAP-PK, WAR, WAF and Women Workers Helpline. The committee wrote to the superintendent of the Haripur Central Prison expressing concern about the conditions of detention there and seeking permission to “visit the jail and meet the detainees, especially Mohsin Dawar MNA and Ali Wazir MNA...”

The prison head won a point by replying promptly, but permission for a visit to the jail was declined. He wrote: “It is intimated that the PTM activists are confined under 3 MPO in this jail hence you cannot meet them according to the rules. Moreover, the jailed MNAs Mohsin Dawar and Ali Wazir are also charged in anti-state activities hence they are governed under Rule 723(viii) & 723(xiii) of Pakistan Prisons Rules. According to the said rules the prisoners have to submit a list of their friends and relatives who they want to meet. Since the prisoners in question did not mention you in their list hence you are not allowed to meet the said prisoners.

“Rest [assured?] the prisoners in question are treated humanely and in accordance with law. Their rights as prisoners are not infringed upon as alleged in your letter.”

The jail superintendent can’t be blamed for going by the instructions given to him. But his superiors have missed the possibility of getting their regime of “humane” treatment of the detainees endorsed by a representative civil society alliance. What is the harm in letting the people know how well the detainees are treated? Reliance is placed on rules that give officials the power to reject public demands.

These rules are bent literally every day to suit the government’s expedience — and often unjustifiably. If rules and authority are interpreted in the interest of increasing public oversight of the use of government authority, it could increase citizens’ faith in the government’s democratic credentials and its respect for the rule of law.

It is certainly time to end the prison ­authorities’ absolute and completely indefensible power to deny access to the prisoners/detainees by resuscitating the system of independent, non-official visitors and allowing parliamentarians, bar associations and well-established civil society organisations to periodically visit jails several times a year.

Published in Dawn, September 5th, 2019