Burying the doctrine of elite necessity

The writer is a lawyer associated with Foundation for Fundamental Rights.
The Supreme Court’s decision in Kaukab Iqbal v The Federation, a petition that sought the enforcement of Urdu as Pakistan’s state language, has drawn the ire of many writers in Pakistan’s English press. The critics have come up with constitutional as well as policy-oriented arguments, both of which are downright disingenuous and need to be taken on.
To begin with, let’s take an editorial in the English press authored by a law student in an American university who has called the Kowkab Iqbal judgement an exercise in “judicial supremacy.” He laments: “… Justice Khawaja failed to understand that change in a democratic system comes gradually and through the process of the vote.” He alleges that the former chief justice failed to carry out “an examination of the Constitutional text” or to adhere to what it says, and instead fell for “what judges might want it to say.” In a similar vein, another critic, a UK-trained lawyer, complains: “The Court has sadly overreached and ventured into the domain of executive… [T]he Court should have deferred to executive discretion...”
This allegation on the Kowkab Iqbal ruling is surprising. Whatever it may have been, this was not a case of judicial over-reach. Just look at the text of Article 251 which says: “(1) The National language of Pakistan is Urdu, and arrangements SHALL be made for its being used for official and other purposes within fifteen years from the commencing day. (2) Subject to clause (1), the English language MAY be used for official purposes until arrangements are made for its replacement by Urdu.” Notice the capitalised words. The constitutional text does not leave the matter to the executive’s discretion. Or the legislature’s, for that matter. It says: “arrangements SHALL be made …” The only exemption is for the initial 15-year grace period during which English may be used for official purposes.
The Supreme Court or, for that matter, the former chief justice did not invent Article 251 in their love of Urdu. This article was put there in the constitution by the people of Pakistan through the process of the vote. Nor was it a typo or a chance insertion by some ambitious, starry-eyed draftsman; it was the fruit of our peoples’ struggles. The abolition of the monopoly of English on official discourse was very much a part of the decolonising agenda that crystallised in the shape of our constitution.
So much for the critics’ constitutional argument. Now consider their policy argument. The above-quoted critic goes on to add: “Language grows on the creation of larger community. English has that community... It has emerged as the language of wider inter-cultural communication….”
It is true that if the transnational imagined community of humanity today has a language, it is English. Or, more precisely, American English, the lingo of the internet. But if English connects us to the well-to-do of the whole world, the language alternatively called Urdu or Hindi – forget state propaganda, linguistically it’s the same thing – is what connects us with the teeming millions of South Asia with whom we share a common history and a common destiny.
Back in the 18th century, Urdu-Hindi was the provincial tongue of certain regions in northern India. But it has since gone on to became the lingua franca of this most impoverished of the world’s regions, understood by close to one billion people. Urdu-Hindi found a place in our constitutions because it was the voice of our decolonisation movement. Even today it provides the key to the soul of our people, especially in the hand of its finest exponents – Bollywood actors and pop singers, authors of literary masterpieces pulp fiction magazines, politicians in the Lok Sabha and the Majlis-e-Shoora, hosts of political talk shows and the omnipresent fiery clerics.
Despite the popular acceptance of Urdu-Hindi, or probably because of it, the entrenched English-literate elites on both sides of the border, but especially in Pakistan, refuse to dignify this language – or any other of South Asia’s languages – with official sanction.
Article 251 does not aim to deprive our people of opportunities for transnational communication. It aims to dignify a language in which South Asia’s people are already engaging in public discourse. In his profound reflections about the essence of liberal democracy, German philosopher Habermas speaks about the importance of a lively public sphere for democratisation. The public sphere in Pakistan is principally inhabited largely by one language: Urdu. Democratisation and social progress can only happen in a real sense when the halls of state power are opened to the language in which people are communicating in the public sphere. That language is Urdu, not English. That’s what the Kowkab Iqbal judgement aims for.
The stir created by Kaukab Iqbal’s judgement in the English press is explained by the clash of interests involved here. The critic claims “As a corollary of globalisation, English has been de-imperialised... Even in a country like Pakistan, English language is no more an elitist preserve.” But nothing could be farther from the truth.
In Pakistan’s increasingly apartheid-like society, English remains very much the preserve of the elite. It is all about holding on to power and money and not about communicating with the masses. It’s our own little West Bank barrier. For decades, the haves in our society have been constructing this wall around their children to insulate them from the have-nots and their children. Their chimerical hope is that, amidst the rigours of an increasingly compassion-less neo-liberal global economy, the fortress of English will protect ‘us and our children’ from losing out to ‘them and their children’. It is because of these class imperatives, and not because of the exigencies of globalization, that displacing English as the state’s official language with any other language is proving so difficult.
The jurisprudentially relevant question is not what critics are raising but rather the converse: Why did the court not do this earlier? A good 42 years have expired since the article took effect. Even the 15-year grace period expired more than 27 years ago. Since 1988, if called upon by any petitioner, the constitutional courts of this country would have had no legal choice but to enforce Article 251. In fact, the Kowkab Iqabl petition itself had been lying dormant in the Supreme Court’s docket since 2003. So why has it taken so long?
The answer to this lies in the infamous ‘doctrine of necessity’ or, more accurately titled, the doctrine of elite necessity, to which Pakistan’s superior judiciary has long adhered, in one sinister way or another. The doctrine represents a tacit understanding between judge and elites that not everything written in the constitution is to be treated as equally sacred; some provisions which most hurt the rich and powerful are not be enforced because they are vacant promises made by the politicians to assuage the masses.
A well-known example of such sorry-we-can’t-enforce-it constitutional provisions is the promise of separation of the judiciary from the historically overweening executive. Just like Article 251, Article 175 demanded the completion of this process by 1988. Yet, it wasn’t done until much later. An even more glaring example was the bar in Article 63 against dual nationals holding office. Despite the explicit constitutional bar, well-heeled dual nationals kept sitting in the halls of parliament and, in the 1990s, we even had a caretaker prime minister who was, by all accounts, a dual national.
What challenged this hypocrisy in Pakistan was the fateful Lawyers’ Movement. After the purges of 2009, the superior judiciary owed its seat to a popular constitutionalist movement and not to some intra-elite compromises. Despite being a part of the elite themselves, Chief Justice Chaudhry and his colleagues were left with no choice but to take every word of the 1973 Constitution seriously. In the Sindh High Court Bar case, the subsequent NRO case, and countless other precedents, they proclaimed doctrine of necessity dead. In Justice Khawaja’s words: “As a court of law, we cannot base our judgments on the anticipated consequences of our decisions; else we will be reverting to the malignant doctrine of necessity which has already been buried because of the valiant struggle of the people of Pakistan.”
By the time Justice Khawaja became chief justice of Pakistan, the line of precedents the Ccurt itself had set, and the rhetoric it had unleashed, left it with no choice. If Article 251 exists, and if the constitution envisages a linguistic de-colonisation, then no matter how inconvenient this may be for our judicial and bureaucratic elites, it has to be done. In the grim social reality of today’s Pakistan, this may seem unattainable. But then, aiming for unattainable is precisely what we, as a polity, should be prepared for, now that we have buried the doctrine of necessity. From this, one hopes, there will be no going back.
Email: umer.gilani@gmail.com