Daily Times

“In the present circumstances, I observe with great concern that District Administration not only failed to perform its duty as was required, rather from the mannerism it appears that sit-in has been facilitated to put the country in crisis…” read a scathing judgement of Islamabad High Court in the case of Syed Pervaiz Zahoor (WP No. 3914/2017). The judgement also elucidated that a right to protest is a qualified right that needs to be balanced with other citizens’ fundamental rights, adding that there is a designated place to protests in Islamabad i.e. “Democracy Park and Speech Corner [parade ground]”.

The opinion of the Court questioned the lack of bona fides of federal government by stating; “it is a mystery that the protesters are sitting for the last 10 days [case decided on 17.11.2017] and District Administration is acting like a spectator of a cricket match.” The federal government, from time to time, issues notifications under s.144 CrPC for public order and can penalise public gatherings such as the dharna at Faizabad. Such notification was in force at all relevant times and was violated by the mob (Government also has powers under The Police Order, 2002 and the Police Act, 1861 to regulate the “conduct, route and time” of processions or assemblies). The Court simply directed the federal government to do what was necessary under law.

In disposing of the matter, the Court directed the federal government: “This task must be completed by tomorrow”. This is where one can be critical of the order. With the short deadline to clear the site, a matter that should have been reserved for executive discretion per the principles of deference and comity, enabled the federal government to spin its failure and implicate judiciary; dragging it into the political controversy. To make it worse, the Court was quick to conduct contempt proceedings.  Federal government claimed they had to conduct the operation on Saturday due to the Court’s order.

With the High Court already having passed an order that was not executed, the August Supreme Court intervened as well, taking suo motu notice on 21.11.2017 of the sit-in.  The Court took suo motu notice while listening to an unrelated Civil Petition No.2983/2017 in its appellate jurisdiction, when the Court was informed that a counsel could not appear due to the sit-in. To exercise original jurisdiction in such a manner is unprecedented (but not unconstitutional). Was it necessary when another Constitutional Court’s order was already in the field?

There is another reason for the Supreme Court to have exercised restraint. The mob at Faizabad had framed the issue as blasphemy.  The mob had sympathisers from the civil society. Given the framing of the issue and popular debates on media and public places; the on-going dharna, was for the executive, and executive alone, to resolve without the judicial intervention. The interventions squarely placed the superior judiciary in the politico-religious thicket.  This is evident from the Court’s order of 23.11.2017, when it specifically responded to abuse hurled at the Court with “salutations of peace and the prayer that Almighty Allah guide them…”.

Where was Majlis-e-Shoora in all this? Remember how it all started; a clerical error? Was it? This can easily be ascertained from the Senate Hansard which is a public document (available on Senate’ website). The government should, instead of misleading the electorate like it has on every major policy issue, clarify the conscious and thought-out position, its law minister has taken in the Senate’s 267th Session held on Friday, September, 22 2017 (page 40 of the official report). Our parliamentarians not for the first time have kept people in the dark. This stems both from our parliamentary culture and lack of capacity of parliamentarians.

The role of media has been disappointing as well. As an informal pillar of government, it has constantly wrestled to outshine the others on agenda sitting. There is little or no training of the broadcasters and anchors who consistently breach journalistic ethics and Electronic Media (Programs and Advertisements) Code of Conduct, 2015. Worse, some of them, have saviour complex. PEMRA had legitimately prohibited all private channels from broadcasting live pictures of the operation. Channels disregarded the orders. The regulator responded, some may argue daftly, by suspending the transmissions. More than PEMRA, it was news channels’ recklessness, that has cost people access to information in this national crisis.

Having deliberately, it appears facilitated the sustenance of dharna, the federal government called upon the Army under Article 245 of the Constitution, in aid of civil power, to control law and order situation in the ICT. Article 245 of the Constitution, does not envisage the Army to refuse the order of the federal government, nor carve out a different institutional role or independent judgment when called upon under Article 245. In reply to the notification issued by the federal government late on 25th November, 2017; the Army declined to engage with the mob and even pointed out the inadequate engagement by [bloody] civilian administration with the protesters. The response from Army, as reported, does indicate, at the very least, fleeting power of the federal government, that is, hell bent upon scripting its martyrdom during Rabi-ul-Awal — well aware, it is only the military coup, that can prolong its political career.

This dharna was transformed into a national crisis due to the collective failure of all institutions of the state. It has exposed the myriad of institutional interests and short sightedness our elite pursues. While there is a scramble for power at the top, at the bottom of the pyramid, people still wonder if this crisis will be resolved soon. Resolved has many connotations. People will accept the official version of it. They are aware, like most other, nay, all other national crisis, they will never know the complete facts that led to the Saturday’s tragedy. For the state and the people of Pakistan, this is business as usual.

The writer attended Berkeley and is a Barrister of Lincoln’s Inn

Published in Daily Times, November 30^th 2017.