The Tone of Voice, My Lord
My Lords cannot decide political matters for us and if they do, then they cannot expect unquestioning obedience.
“Seemingly it so appears that two Prime Ministers from Sindh were sacrificed at the altar of Article 58 (2)(b) of the Constitution but when the turn of a Prime Minister from Punjab came the tables were turned”, said Justice Sajjad Ali Shah in the 1993 Supreme Court judgment restoring the Assembly of Mian Muhammad Nawaz Sharif which was earlier dissolved by President Ghulam Ishaq Khan. Justice Shah was the only dissenting judge in that case and incidentally also the only Sindhi Judge in the Supreme Court then. The assemblies of Junejo, BB and Mian Sahib were all dissolved maliciously and probably illegally. The statement was unbecoming and unacceptable coming from a judge of the Supreme Court and had strong whiffs of provincialism. However, it is not easy to banish the sentiment. To my mind, that remained one of the most harrowing, depressing thing said from the bench of a superior court in Pakistan, till now. Now, we have another statement in the field and the challenge posed is stiffer.
The Lahore High Court has ordered the making of the Kalabagh Dam. Let us keep technical and personal opinions on the desirability of making the dam aside for a moment. The highest Court in “Punjab” has “ordered” the making of a dam against which the other three provinces have passed resolutions in the past. And hold clear and public positions. Reflect on this for a moment. This is the month of December, with the 16th just a few days away. It is also dispiriting that this comes so soon after the Asghar Khan decision. The fleeting moment of hope where the Supreme Court said that no institution alone can be the final adjudicator of “national interest” is gone now. A provincial High Court has decided for all of us what “national interest” is. Given the interest of My Lords in poetry as exhibited by their judgments, one feels a slight tremor in reminding them of Habib Jalib and “Jaag meray Punjab ke Pakistan chala” No one province can decide “National interest.”
The legal argument briefly is that the Court has held that it is binding on the federal government to implement the decision taken by the Council of Common Interests (CCI) taken in 1991. Never mind that the 1990 election in consequence of which the particular CCI came into existence was rigged, as we officially know now. Never mind that the CCI before the 18th Amendment was weak and in practice almost defunct. Never mind that it is unclear if the LHC will also provide for the financing of the dam or not.
Is it possible, My Lord, that the Chief Justice of the Lahore High Court did not know about the stated position of the other provinces on the matter? We know that our Lordships generally are very up-to-date on what is covered in the media. Not only taking frequent suo-motu notices but also reprimanding and restraining the media from criticising the judiciary and their judgments. I think we can safely assume that the Court knew the implications of the decision. Then, the next question is even more disturbing: did My Lord not care about this? Perhaps he did care and felt he knew better. Perhaps My Lord gave a new interpretation to Karl Marx’s statement, “they cannot represent themselves, they must be represented”.
The Kalabagh Dam represents the six-decade long challenge of federalism and perhaps the national question. I say this with the utmost of humbleness, but no one body or person has the power or capacity to resolve this challenge. Questions of national identity are not solved by proclamations from above. Not even by someone as learned and as temperate as My Lord the Chief Justice of the LHC.
The intention of My Lord is, indeed, noble; however, we will have to fight this battle on our own.
My Lords cannot decide political matters for us and if they do, then they cannot expect unquestioning obedience. I urge everybody to read the excellent report by Human Rights Watch (HRW) on how My Lords do not like criticism. It seems that a certain segment of our “independent” (synonymous with uncritically pro-judiciary these days) media has taken it upon themselves to respond to the balanced critique of the HRW on behalf of the Court by starting a shameful smear campaign of yellow journalism against the HRW and the brilliant, indomitable Syed Ali Dayan Hasan. The internationally established credibility of Ali Dayan and the HRW are not going to be affected by this. However, My Lords, you do not need sycophantic friends/foot soldiers like these, you are better off listening to the sane advice of the HRW.
My Lords have already taken up the role of economic and energy management with their decision to set the CNG prices. Here again, My Lords are not particularly concerned about demand and supply. For example, lowering the CNG prices for private automobiles raises demand for it, which means more diversion from the industry, causing unemployment, food shortages (if fertiliser factories close because Toyota Corollas with CNG are being preferred). However, making the right choice might not be “popular”. Not popular with the right constituency. The Lawyers’ Movement was spearheaded by the urban middle class. My Lords, the “awam” does not have automobiles, CNG fitted or not. The “awam” needs a better public transport system. And that is a job that the government/s has/have to perform. We appreciate the concern; however, My Lords, although being undeniably jurists par excellence, are not economists. And their opinion on the matter should not be binding. My Lords have the mandate of interpreting and implementing laws. If they want to run this country, I am afraid they will have to resign and contest elections. Just a gentle cautionary note, then it becomes harder to restrain people from criticising. Popularity always has a downside.
There are people who do not understand that if an institution or a province wants to act for the betterment of the entire country, why anyone should have a problem with that. For them, let me conclude with Simon Raven’s, Sound the Retreat, where a British army officer is having a conversation with a native on the eve of independence. The Colonel asks, “Why are you so keen to get rid of us, Munshi sahib.” Munshi responds, “Because we wish to run our own affairs. We shall not order them as efficaciously as you do, my God, no, but then efficacy is not important to us, you understand…”. Colonel, “It’s your fault. You will insist on the British leaving”. To which the native Munshi replies, “Partly because we do not like to be spoken to in that tone of voice”.
Published in The Express Tribune, December 2nd, 2012.
The Lahore High Court has ordered the making of the Kalabagh Dam. Let us keep technical and personal opinions on the desirability of making the dam aside for a moment. The highest Court in “Punjab” has “ordered” the making of a dam against which the other three provinces have passed resolutions in the past. And hold clear and public positions. Reflect on this for a moment. This is the month of December, with the 16th just a few days away. It is also dispiriting that this comes so soon after the Asghar Khan decision. The fleeting moment of hope where the Supreme Court said that no institution alone can be the final adjudicator of “national interest” is gone now. A provincial High Court has decided for all of us what “national interest” is. Given the interest of My Lords in poetry as exhibited by their judgments, one feels a slight tremor in reminding them of Habib Jalib and “Jaag meray Punjab ke Pakistan chala” No one province can decide “National interest.”
The legal argument briefly is that the Court has held that it is binding on the federal government to implement the decision taken by the Council of Common Interests (CCI) taken in 1991. Never mind that the 1990 election in consequence of which the particular CCI came into existence was rigged, as we officially know now. Never mind that the CCI before the 18th Amendment was weak and in practice almost defunct. Never mind that it is unclear if the LHC will also provide for the financing of the dam or not.
Is it possible, My Lord, that the Chief Justice of the Lahore High Court did not know about the stated position of the other provinces on the matter? We know that our Lordships generally are very up-to-date on what is covered in the media. Not only taking frequent suo-motu notices but also reprimanding and restraining the media from criticising the judiciary and their judgments. I think we can safely assume that the Court knew the implications of the decision. Then, the next question is even more disturbing: did My Lord not care about this? Perhaps he did care and felt he knew better. Perhaps My Lord gave a new interpretation to Karl Marx’s statement, “they cannot represent themselves, they must be represented”.
The Kalabagh Dam represents the six-decade long challenge of federalism and perhaps the national question. I say this with the utmost of humbleness, but no one body or person has the power or capacity to resolve this challenge. Questions of national identity are not solved by proclamations from above. Not even by someone as learned and as temperate as My Lord the Chief Justice of the LHC.
The intention of My Lord is, indeed, noble; however, we will have to fight this battle on our own.
My Lords cannot decide political matters for us and if they do, then they cannot expect unquestioning obedience. I urge everybody to read the excellent report by Human Rights Watch (HRW) on how My Lords do not like criticism. It seems that a certain segment of our “independent” (synonymous with uncritically pro-judiciary these days) media has taken it upon themselves to respond to the balanced critique of the HRW on behalf of the Court by starting a shameful smear campaign of yellow journalism against the HRW and the brilliant, indomitable Syed Ali Dayan Hasan. The internationally established credibility of Ali Dayan and the HRW are not going to be affected by this. However, My Lords, you do not need sycophantic friends/foot soldiers like these, you are better off listening to the sane advice of the HRW.
My Lords have already taken up the role of economic and energy management with their decision to set the CNG prices. Here again, My Lords are not particularly concerned about demand and supply. For example, lowering the CNG prices for private automobiles raises demand for it, which means more diversion from the industry, causing unemployment, food shortages (if fertiliser factories close because Toyota Corollas with CNG are being preferred). However, making the right choice might not be “popular”. Not popular with the right constituency. The Lawyers’ Movement was spearheaded by the urban middle class. My Lords, the “awam” does not have automobiles, CNG fitted or not. The “awam” needs a better public transport system. And that is a job that the government/s has/have to perform. We appreciate the concern; however, My Lords, although being undeniably jurists par excellence, are not economists. And their opinion on the matter should not be binding. My Lords have the mandate of interpreting and implementing laws. If they want to run this country, I am afraid they will have to resign and contest elections. Just a gentle cautionary note, then it becomes harder to restrain people from criticising. Popularity always has a downside.
There are people who do not understand that if an institution or a province wants to act for the betterment of the entire country, why anyone should have a problem with that. For them, let me conclude with Simon Raven’s, Sound the Retreat, where a British army officer is having a conversation with a native on the eve of independence. The Colonel asks, “Why are you so keen to get rid of us, Munshi sahib.” Munshi responds, “Because we wish to run our own affairs. We shall not order them as efficaciously as you do, my God, no, but then efficacy is not important to us, you understand…”. Colonel, “It’s your fault. You will insist on the British leaving”. To which the native Munshi replies, “Partly because we do not like to be spoken to in that tone of voice”.
Published in The Express Tribune, December 2nd, 2012.