Take rights seriously?
Those who hold power in the Islamic Republic do not expect to face resistance, disclosure or criticism in public view. Or not at all. The last few weeks have been good for those who like boldness. The winter air failed to cool what had been smoldering for quite some time. These weeks have not been so good for those looking for tough order and regulation. And they have sown the distress of those who seek substance and seriousness in the management of the affairs of the State.
The organizers of the recent Asma Jahangir 2021 conference have been bold in the search for substance. By inviting former Prime Minister Nawaz Sharif to address the conference’s closing session, the organizers forced the state and society to take a stand on the fundamental rights contained in Articles 19 and 19A of the constitution which guarantee freedom of expression and information. The former prime minister’s telephone speech was intended to be interrupted by all the force at the disposal of the Pakistan Telecommunications Authority. Can fundamental constitutional rights be violated by staff deployed by an agency to place jammers that disrupt WiFi access to the global network? Do those who have wire cutters have the ultimate authority to allow or prohibit a particular speech?
Does a fugitive cease to hold the various human rights, including the right to speak, considered inalienable? Do the words of a fugitive remain “information” that other citizens of the state have the right to hear, if they wish, in the exercise of the right to information guaranteed by the constitution? Can a leaker be allowed to post letters or transmit recorded messages? Where to draw the line?
A fleeing individual applying to a court for redress through a representative, without submitting to the authority of the court, may well be denied redress because of his disregard for the jurisdiction of the court. . What law, however, prohibits a fleeing individual from using airwaves or cyberspace to communicate without seeking a court order? What law authorizes prohibiting any citizen from listening to the speech of a fugitive? Short answer: none. Would such laws, if adopted, infringe the fundamental rights guaranteed by the State? Or should such restrictions, if imposed by law, be considered reasonable restrictions on fundamental rights of expression and information?
A society which takes the idea of the rule of law seriously and accepts certain rights as fundamental must face these questions. Principles rather than current animosity or political expediency must inform the outcome we adopt. Once adopted, principles can emerge in unexpected contexts and lead to consequences that many may then find unacceptable. History bears witness to the power of the word of fugitives and exiles, from Voltaire to Khomeini. Although no equivalence is foreseen or suggested, the principles we adopt today go beyond the particular and address the general.
The Prime Minister opened the ball of mistrust at the start of the season, in the fall, via a confrontation around the appointment of the head of the ISI. Was it civil supremacy or the desire to settle certain cases before November 20? The chiryas remained busy chirping. The joint session of parliament on November 17 and the sudden reversals of supposedly disgruntled allies in favor of the government fueled the ambers of various conspiracy theories. On that day, 33 sheets of paper became federal law in a single joint session, an unprecedented event even in a country where constitutional form has often taken precedence over substance.
Certain bases can be stated, without detour, as a backdrop to the parliamentary spectacle of November 17. Islamabad elected by the National Assembly. The origin of the provisions of the constitution which allow a joint session lies in the fear of the provinces which witnessed the aftermath of the fall of Dhaka. The constitution adopted in 1973 reflected the consequences. The disappearance of the elected governments of Balochistan and of the government of the day [former] NWFP later in the year was the product of fear. It is a fear that refuses to subside. The Eighteenth Amendment of 2010 made it easier to pass bills in a joint session by replacing the previous requirement of a majority of all members of both houses with a majority of those present and voting in the during a particular session. It was remarkable and ironic, given the spirit of provincial empowerment of the Eighteenth Amendment.
The National Assembly ensures the representation of each province in proportions determined by the population of each. The Senate subverts the numerical superiority of the large provinces by granting equal weight to each province. Balochistan, with less than five percent of the country’s population, is the equal of Punjab with over 60 percent. Each has 20 members in the Senate. Normal law-making activities require the Senate to approve or reject all proposed laws, with the exception of so-called finance bills which deal primarily with federal taxation. This allows small provinces the ability to block legislation in the Senate supported by a majority party or coalition in the National Assembly because of its strength in the larger provinces. The expected result is legislation which enjoys broad support in all federating units.
The composition of the Senate also reflects the strength of the various parties in the provincial assemblies in the elections held before the last election. This allows for a certain continuity. The members of the Senate with six-year terms, those elected in March 2018 by the provincial assemblies elected in May 2013 are still in office. This constitutional scheme allows the Senate to act as a restraint against a current majority while keeping in play the electoral results of the recent past and not just the election which resulted in the ruling majority of the day in the National Assembly. The expected result is legislation that has more than fleeting temporal support.
The joint session of parliament merges the 102 members of the Senate into the 343 members of the National Assembly. In theory, the simple majority of those present and voting at a joint session can be ensured by up to 222 members of the National Assembly alone. This number could be taken from members of the National Assembly of Punjab and one of the other provinces. The Senate, as a chamber of the provinces, is undermined in a joint session. This weakening of the Senate is a gesture against the federal character of the State which must be resorted to most rarely.
The joint session of Parliament on November 17 was called precisely because the government was unsure of securing a majority in the Senate – which then had to be brought under control. Tons of uncontroversial laws such as the Law on the National Institute of the Arts have been incorporated into a vast legislative program, the real purpose of which was to pass certain amendments to the electoral laws. Electronic voting for those who vote in Pakistan as well as Internet voting for overseas Pakistanis were made mandatory by law by the joint session, with all of the opposition, minus the usual quislings, in protest sign.
The concerns of the Pakistan Election Commission, the constitutional guardian of the electoral process, were summarily dismissed. The stage is set for an election in 2023, or even before, whose credibility will inevitably be called into question, for good and for bad reasons, by all those who end up believing themselves protected from inferior gods.
Hum dekhain ge …
The writer is a lawyer for the Supreme Court of Pakistan.
Email: salmanr2002 @ hotmail. com