Daily Times

The dictionary defines a jurist as ‘an expert of law; a judge’. In other words, a judge is assumed to be a jurist and, therefore, any Chief Justice, current or former, must be a ‘supra’ jurist; right? Not only do we have a supra jurist at the helm of the government, at least for the next few weeks, we also have another CJ who is, not only looking after our legal matters but has also extended his arena to include politico-governmental or administrative aspects as well. And, to top it all, the Chief Election Commissioner is also a supra jurist.

It seems we have nothing to worry about, yet we still are. I wonder why?

Perhaps the fault is mine. I am a former soldier, not too well educated, nor too bright; just a run-of-the-mill fellow who never was, or could be ‘much of a muchness’. In my dictionary — the simple one — a jurist lies on a higher plane because he or she understands the philosophy of law and knows all the clichés. Above all, a jurist seeks to ensure that justice is done.

In the judicial world of today, practitioners, and even many judges, might be harping on the letter of the law, rather than its spirit. A genuine jurist however, wherever he or she might be, will always consider which way justice is served.

While practitioners of law remain preoccupied with the letter of the law, true jurists concern themselves with whether justice has truly been served

Since the subject here is the form that applicants for the forthcoming elections have to submit to the election commission, let me put the matter in perspective. The ‘Representative of People’s Act 1976’, under which elections have been held since it became law, required all applicants to submit personal information. Those of special significance here are: tax returns, assets, earning and expenditure, loans not paid back, criminal proceedings and education. Any voter would agree that this information might be pertinent to him or her before voting.

The recently amended ‘Election Act 2017’, passed October last year, without demur by any party, including the PTI — which now conveniently claims it had objections, changed all this. Not only did it delete all requirement of such, very pertinent information, far worse, under Section 32 of the Election Act 2017, any question not asked in the application submitted to ECP could never be raised again. In seems therefore, that all criminals, rapists, murderers or mere thieves who manage to get elected, are, virtually, immune thereafter. Very craftily done.

In December 2017, two young men, one a young lawyer aspiring to be a jurist, Saad Rasool, and Habib Akram filed a petition before the Lahore High Court (LHC) appealing against the deletion of applicant’s information in the revised form under the new act.

Despite the fact that the ECP initially submitted before the court that it agreed with the petitioners (its present position not withstanding), the judge hearing the case, considered it imperative that the government’s view be heard before deciding the case. To this end, about eighteen hearings were held but, nobody appeared on behalf of the government. And, when in its final throes, the PML-N government did, finally express its views, the court announced its judgment within three days.

Whatever delay there was in its pronouncement of judgment was, therefore, caused (deliberately?) by the government; neither by the applicants nor the court.

Incidentally, our SC is not a supra sessions court or a trial court. It is primarily a ‘Constitutional court’; one that interprets the constitution but also rules on laws that conflict or do not serve justice. It was quick to assert the prerogative of the judges to decide who could join their elite ranks. And, of course, it is the court of final appeal.

Under Section 32 of the Election Act 2017, any question not asked in the applicatioxn submitted to ECP could never be raised again. In seems therefore, that all criminals, rapists, murderers or mere thieves who manage to get elected, are, virtually, immune thereafter. Very craftily done

Here comes my confusion. The LHC judge, a jurist, though far from a supra one, ruled on two issues. First, while it is the parliament’s duty to draft laws for elections, it is the duty of the ECP to draft the nomination forms and second, she found that the forms in Election Act 2017, failed to provide mandatory information about the applicant required by law. To my simple understanding; a sound ruling.

Forget about the ‘expected’ from the speaker of the house, whom I refrain to call Sadiq, immediately following Justice Aysha’s decision, two supra jurists, the interim PM and the ECP announced their intent to appeal, because it would delay the elections. Without any delay, the CJ himself, promptly ruled in favor of the PM and ECP’s appeal and restored the Election Act 2017 in entirety.

Personally, to simple citizens, a few days delay here or there would be immaterial, in the interests of justice. And, to simple minds, justice would be extremely ill served, if criminals were granted entry to our houses of parliament.

Since this final process involved the collusion of not one, but three supra jurists, I have no doubt that the collusion and ruling served the interests of justice. My problem is that I cannot understand how. I am hoping someone can explain this to me.

Questioning the PM, even an interim one, or the CJ, might be considered ‘in contempt’, so I put this question to the ECP, the most appropriate for numerous reasons. Not only was it his jurisdiction that was initially encroached upon by parliament in drafting the form, the ECP had also initially agreed with the applicants before the LHC. He should be best suited to explain to simple minds why he changed his mind. Especially when an ECP official has expressed similar concerns as I, to the daily Dawn as reported on June 5, after the SC judgment.

The writer is a retired brigadier. He is also former vice president and founder of the Islamabad Policy Research Institute (IPRI)

Published in Daily Times, June 7^th 2018.