ONE expects lawyers to think before they speak, certainly not to speak without thinking. Yet at times, volubility overtakes better sense.

Recently, according to the report of the proceedings before the Supreme Court in the Justice Qazi Isa case, the counsel on behalf of the government made an observation that vitiated centuries of legal and constitutional precedent. One of the learned judges on the bench had observed “that the president had to form an independent opinion within the ambit of law whether the information before him was worthwhile to be sent to the Supreme Judicial Council”.

To which the counsel for the government responded: “It was wrong to suggest that the president and the prime minister should have a brilliant legal mind since one was a dentist by profession while the other was an Oxford graduate with a cricketing legacy.” He capped this with the craven admission that “the entire system of governance functioned through secretaries and proper summaries”.

Had he forgotten the ancient maxim ‘ignorantia juris non excusat’ (ignorance of the law is no excuse)? The president and the prime minister are expected, as are their fellow citizens, to know the law or, if they do not, to rely upon someone who does know the law. Or are they, like many of their predecessors, above the law, outside the law, or below the law?

Moral ambiguity bedevils governments here and in the UK.

At a stroke, the same counsel also airbrushed away the safeguard in our 1973 Constitution which gives the president the “power to grant pardon, reprieve and respite, and to remit, suspend or commute any sentence passed by any court, tribunal or other authority”. Was he suggesting that a dentist is unqualified to exercise clemency, to decide upon life or death? Or that a former cricketer is unable to apply his own mind before signing any summary sent to the president for approval?

The counsel has not only forgotten his law lessons but also his history. He should have remembered that in 1965, another dentist once fought a bitterly contested election for Pakistan’s presidency. The candidate’s name was Miss Fatima Jinnah, her opponent Gen Ayub Khan. Had she won, she would have occupied the presidency with powers beyond filling cavities and performing extractions.

His contention that the “entire system of governance” is dependent on civil servants is a more sinister admission. He should have known that bureaucrats are expected to follow the Rules of Business, in the same way that elected representatives are bound by the Constitution. Was he implying that our prime minister is no more than a constitutional monarch, who can reign but not rule? If so, that would make the bureaucracy the Sixth Estate in the land, at par with the Fourth (the Press) and the Fifth (Social media), each exercising authority without responsibility.

It is precisely this moral ambiguity that bedevils governments both here and in the United Kingdom. Our prime minister has a plethora of special assistants who behave like ministers, act like ministers and decide as ministers, without the manacles of ministerial accountability. They are answerable to no one but him. Similarly, British Prime Minister Boris Johnson depends heavily upon his special adviser Dominic Cummings, much to the mortification of the Whitehall establishment. Recently, Dominic Cummings fell foul of it when the press reported that he had broken the very rules of lockdown that he himself had helped draft.

Dominic Cummings and Jahangir Tareen share an uncommon achievement. Both propelled their protégés to power. Boris Johnson owes his victory in the 2019 elections to Cummings’ skilful strategies. Imran Khan owes Jahangir Tareen a debt that cannot be repaid simply by returning the bullet-proof car Tareen had ‘gifted’ him.

Today, both prime ministers, seemingly secure in their seats, are confronted by a common apolitical adversary, Covid-19. Each is struggling within the coils of conflicting advice to decide what is the best course to follow — economic paralysis or human carnage? Johnson has decided to allow entry into the United Kingdom if the visitor can self-isolate for 14 days or pay a fine. Imran Khan has opened our borders, made lockdowns as obsolete as dharnas, and blames the elite “who have the privilege of spacious homes and income” for selfishly demanding a continued lockdown.

In a crisis like this, the words of others come to mind. Edmund Burke, speaking in 1774 about the demand for independence by America, argued: “Your scheme yields no revenue; it yields nothing but discontent, disorder, disobedience.” He continued as if addressing Trump’s America: “And such is the state of America that after wading up to your eyes in blood, you could only end just where you begun ... all is confusion beyond it.”

All too often, leaders and lawyers open their mouths to put their other foot in. Our dentist-president should know.

The writer is an author.

www.fsaijazuddin.pk

Published in Dawn, June 11th, 2020