THIS is a Latin phrase “Fiat Justitia ruat celum” which in jurisprudence states that “Let Justice be done, Though the Heavens Fall”. In 1772 Lord Mansfield invoked this when he freed a slave whose fate was sealed in Summerset’s case. This was an unpopular verdict, which angered powerful lobby that advocated slavery. The US Congress ratified on 6 December 1865, the 13th Amendment in American Constitution, which abolished slavery. Former CJ of US SC Justice Marshall who was appointed in 1801 as the nation’s 4th chief justice cited this Latin phrase while giving a judgment.
In a country with a written constitution, it should be the guiding force which must prevail. Any Judgment, not based on laws, but on populism, be it religious or political, is without lawful authority. In British India there was a case, where a Hindu high priest of a temple in Tirupathi, alleged a “Mahant” to be in criminal breach of trust, with allegations that he replaced gold coins donated by worshippers with copper coins that were buried under base of flagstaff as per practice. The case came before a bench of CJ Arthur Collins and Justice Muthusami.
The Mahant’s lawyer Eardley Norton invoked religious sanctity, that it was sacrilegious to dig the site, and would cause widespread resentment, which believed in this religious dogma. Barrister Subramania in his arguments against the Mahant, relied on this Latin phrase. The Bench ordered digging which revealed that all the gold was missing and replaced with base metals. This was a unique case involving religious sentiments and sensitivities of majority, versus the law. There are a few jurists who argue that in extraordinary cases, justice can be sacrificed in public interest. This is the basis on which Indian SC upheld gross unconstitutional irregularity of demolishing Babri Mosque by a charged mob of 150,000 activists of VHP on 6 December 1992.
No credible system of governance can function and deliver without rule of law. The Law must prevail, otherwise chaos can follow and a State cannot function, nor preserve its sovereignty, national interest, neither can it be economically self-sustaining. Quaid understood importance of a “Constitution” to achieve his vision of a modern democratic welfare state which motivated Muslims of the subcontinent to unite and struggle for a separate homeland, where they could be free from exploitation, oppression and humiliation at the hands of Hindutva-dominated mindset. It is primarily for this reason that MAJ formed First Constituent Assembly on 11 August 1947, before the formal declaration of independence on 14 August, because he understood that the foundations of a modern democratic welfare state could only be established with a “Constitution” as supreme law.
Unfortunately, after his death, vested interests of a few, coupled with remnants of British Raj, in the form of civil and uniformed bureaucracy, trained by them, to serve and protect the interest of British empire, conspired with their intrigues. In the absence of a Constitution, Pakistan remained a Dominion of British Empire, till such time, it adopted a constitution in 1956 and finally became a republic. In the interim period Government of India Act 1935 was supreme law, which defined the powers exercised by GG, PM and all other public office holders. The GG was legally a representative of the British monarch.
Constitutional experts in the UK are unanimous that the monarch unilaterally cannot dissolve elected parliament and at the most could dismiss head of government. In 1954, the GG dismissed an elected parliament which had just successfully passed a Finance Budget and enjoyed support of majority. He exercised a power, which even the British monarchy, that he represented, no longer possessed. It was a sheer abuse of power, sans any legality. However, it had the support of both GG and CnC, who wanted to install a government that would facilitate creation of a buffer state, willing to facilitate their short-term strategic interests in the Cold War which was at its height. The civilian governments, although weak, were unwilling to succumb state sovereignty, for fear of backlash by citizens and the apparent long-term consequences on national security.
Maulvi Tamizzuddin, the Speaker of Federal Legislature challenged illegal dissolution, despite threats and filed a constitutional appeal in the Federal Court headed by CJ Munir, who resorted to medieval jurist Henry-de-Bracton’s Doctrine of Necessity to appease powerful lobbies, both domestic and international, involved in this criminal miscarriage of justice. There existed no such peril, which warranted this judgment that directly conflicts with vision of Father of Nation MAJ, that Pakistan should be a modern democratic welfare state with a constitution as supreme law. The negativity of the judgment resulted in derailment of Jinnah’s vision and the 1971 debacle.
In January 2024, a 3-member SC Bench headed by CJ Qazi Faiz Issa gave a judgment on an appeal filed by ECP for violations as per law, which required PTI to hold intra-party election due in 2021 as per their own party constitution. Earlier ECP issued a notice to PTI on 24 May 2021, followed by a Show Cause dated 27 July 2021 to conduct their intra-party elections which were due on 13 June 2021 under party’s constitution. PTI sought an extension of one year to hold election on 13 June 2022. It was sent reminders on 7 March 2022; 16 April 2022 reminding them to hold elections before 13 June 2022. This was again not complied with. The dispute over PTI intra-party elections occurred when Akbar Babar, a founding member challenged them. On 22 November 2023, PTI was given 20 days ultimatum to hold party elections as per their party constitution. They declared that they had complied within 9 days of the ECP.
There is no doubt that if Akbar S Babar, if allowed to contest and file his papers, in all probability, he would have lost. Fundamental right of political party, guaranteed by Constitution, to participate in general elections, with a symbol allotted to them, is subject to their compliance with laws legislated by parliament such as Electoral Law. Strictly speaking, judgment given by SCP 3-member Bench, is as per law and constitution, but not as per popular wishes of PTI supporters and activists. They have a right to file a Review Petition and must focus on this. All major political parties, who have managed irregularities committed during their respective intra-party elections, need to set their house in order, fearing possibility of a complaint, by any registered party member, now that a precedent has been set.
—The writer is contributing columnist, based in Lahore.
Email: [email protected]
views expressed are writer’s own.
