Of Legal Theory & Pakistani Politics

James Madison, an American statesman, a political theorist and fourth President of the United States of America from 1809 to 1817 once stated:

“It will be of little avail to the people that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man who knows what the law is today can guess what is will be tomorrow.”

The above situation, a chasm in the realm of political theory and legal operation, is what the Islamic Republic of Pakistan has fallen in. An average person no longer knows what the law entails as due to the rapid fusion of religion, legal precedence, constitutional reform and personal whims of politicians. As a law student, I alongside dozens of budding politicians and lawyers were taught one essential rule which formed the bedrock of Constitutional Law: The Executive Arm of the State must be prevented from exercising an arbitrary use of power and it is the responsibility of the Judiciary and the State Legislature to deem any exercise of power as ultra vires or “outside” the scope of power granted to them by the Constitution of the State. This elemental principle is inviolable and is the basis upon which the State Legislature enacts legislation.

Agreed that yes, there is a constitutional overlap within the Legislature as the Executive is formed from within the Legislature itself. However, to prevent this overlap from overpowering the sanctity of the Constitution is where the Judiciary steps in. If in any case, an Act of Parliament is found to be against the spirit of the Constitution, the Judiciary can declare the Act as null and void, as seen in the case of the Contempt of Court Act of 2012 where the Supreme Court of Pakistan found the provisions of the Act in conflict with Article 63 (1)(g).

As a citizen of this great state, a holder of a green passport, a victim of multiple “random screenings” at foreign airports and a completely new user of a 3G network, the extent to which the Executive or as we tend to lovingly refer to it as the “gurrment” exercises power in an arbitrary fashion no longer surprises me.

Every five years, a President is sworn in, swearing to uphold and protect the provisions of the Constitution, yet at the same time fail to address the manner in which the Executive exercises its power. The ban on the global video sharing website, YouTube, is now about to hit the two year mark, hundreds of other websites cannot be accessed due to “objectionable content” and at the same time, our search for any Act, any law which allows the State to breach on this freedom of expression and information came back empty.

The Inter Ministerial Committee on the Evaluation of Websites (Yes. We have such a Ministry. Evaluating websites is more important than addressing sectarian violence, infrastructural shortcomings and our economic nosedive) is reportedly the standing authority on blocking websites. It is prudent to mention that the IMCEW lacks any statutory foundation, meaning, it was formed without any legal consent by the State Legislature. However, it can be argued that the IMCEW was formed by the Federal Government which has the authority to do so. But the IMCEW has no legal backing, it cannot pass policies or directives, which in reality, does not manifest. The IMCEW has time and time again directed the PTA to block “blasphemous and pornographic content” which then passes on those to ISPs. The IMCEW is not a public authority as defined under Gadoon Textile Mills v Wapda therefore is not a creature of the law and thus ultimately has no authority to pass such directives. Can the role of the IMCEW and its activities be construed as ultra vires? If yes, that will unravel all the decisions of the IMCEW and the internet springs back to pre September 17, 2012, when YouTube was blocked and when the Government found renewed joy in blocking access to a number of websites.

The question remains: Do these activities, namely blocking websites, fall under the ambit of Section 19 of the Constitution which professes the need for the protection of free speech? Yet at the same time the Constitution also upholds the notion that acts may be undertaken to protect the glory of Islam and for public order. I am not questioning the validity of these constitutional clauses; it is the exercise of power, executed under the statutory authority under which they were constituted, which is under scrutiny here.

The Pakistan Telecommunication Reorganization Act 1996 does not grant any power to the PTA to filter the internet. If it does not, then any use of power in that context is illegal and unjustified.

It cannot be stressed that the Executive is taking advantage of the governmental overlap within the State Legislature. To give the reader another view into how the Executive is hesitant in respecting and upholding the sovereignty of Parliament, the National Assembly unanimously passed a resolution seeking the removal of the ban on YouTube on May 6. More than two months have passed since this resolution was passed, the Executive has yet to consider it.

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