JINNAH THE PARLIAMENTARIAN and THE PARLIAMENT OF PAKISTAN, 2002

JINNAH THE PARLIAMENTARIAN <!--[if gte mso 10]> JINNAH THE PARLIAMENTARIAN and THE PARLIAMENT OF PAKISTAN, 2002 By S. M. Zafar, Advocate, Lahore The period, from January 1, 1910 when Mr. Muhammad Ali Jinnah was first elected to the Imperial Legislative Council by non-official members of the Bombay Council on a seat reserved for Muslim, to 11th August, 1947 when he was unanimously elected as President to the Constituent Assembly of Pakistan, a homeland for the Muslims, is a long journey covering 37 eventful years of an ace parliamentarian of the Sub-Continent to whom Harry S. Truman, U.S. President, gave the tribute that "He was the recipient of devotion and loyalty seldom accorded to any man". Most of the Pakistanis admire their Quaid-i-Azam for his principled politics and integrity as a leader who had to face such rivals as were experts in altering the rules of the game and masters in creating obstacles with diverse consequences; or because they are aware of his formidable and awe inspiring performances as a courageous and astute lawyer. However no less important and instructive was his performance, as a parliamentarian. Now that a new parliament is being structured in Pakistan and soon there shall be a working democracy, it will be educative for public in general and specially for the new parliamentarians to become acquainted with Muhammad Ali Jinnah the parliamentarian. Stanley Wolpret said, "Few individuals significantly alter the course of history. Fewer still modify the map of the world. Hardly any one can be credited with creating a nation-state. Muhammad Ali Jinnah did all three". And he achieved these distinctions not as a revolutionary but as a Constitutional and a competent parliamentarian, who, by dint of his knowledge of parliamentary practices, processes and privileges, not only advanced the cause of public good but even helped the parliament gain its supremacy over the executive. Imperial Legislative Council in which honourable Mr. M.A. Jinnah took his seat in 4910 was constituted by Indian Legislative Council Act, 1909. It consisted of 60-man Legislature and included men like Gopal Ghokle, Moti Lal Nehru and other political activists. The status of Council re budget was merely advisory. It possessed limited and restricted power of legislation. Matter of public importance could be discussed through properly moved resolutions. But the right to question the executive was not conceded till much later (in 1892). The officials and nominated members were in majority. The method of elections of the 27 elected members was doubly indirect, inasmuch as they were elected by non-official members of the Provincial Councils who in turn were elected by indirectly elected members of the district councils. Notwithstanding such handicaps and reservations Mr. Jinnah, who was aware of the power of Legislature as an institution and its inherent capacity to evolve, was determined to use the forum of the council for public good. All that was needed was that the members-elect should know their privileges, be conversant with the procedures of the council and be willing to defend the rights of the people they represented. His first opportunity came shortly after he was sworn in when on 25th of February, he took the floor to support a resolution recommending Indian Government to prohibit the recruitment of Indian labour for any portion of the South African Union. Mr. Jinnah protested against the 'harsh and cruel treatment that is meted out to Indians in South Africa'. The session of the council was presided over by Viceroy of India Lord Minto who objected to the use of the words cruel treatment for 'a friendly part of the Empire'. It was a sort of reprimand. Any other person might have withdrawn his words but not Mr. Jinnah, "My Lord", Jinnah responded, "I'm fully aware of the constitution of this council (which) I do not wish to trespass one single moment -- although I should feel much inclined to use harsher language". Jinnah had chosen his words carefully and using his privilege as a member of the council was able to convey his message home. It might be appropriate to give a brief survey of the parliamentary practices and processes which are the tools in the hands of a experienced parliamentarian and which Mr. Jinnah- freely used to his advantage. The celebrated book on Parliamentary Practices by Erscine May contains 39 chapters covering the status and functions of parliament, the privileges of its members, the procedure for moving adjournment motions and resolution, the use of questions hours, debate on budget, the legislative functions including private member bill, and last but not the least the practice of committee systems. Mr. Jinnah availed of each and every power and brought into action every function of the Legislature. The record of legislative council (and of federal Legislature) bears testimony to his devotion and dedication to the office as a member of the Legislature and the mastery, that he had acquired over the procedure and practices of the institution. Availing of his right to table private member legislation Mr. Jinnah on 17th March, 1911 introduced his first legislative measure Musalman Wakf (Validating) Bill which on its passage became the first non-officially sponsored act (i.e. Private Act) in British Indian history. The successful piloting of this specie of legislation established Mr. Jinnah's great qualities as. a lawyer and a parliamentarian besides his devotion to a Muslim cause. (Jinnah was elected on a Muslim seat). What prompted the introduction of this Bill was, the decision of Privy Council which had invalidated such Wakf-al-Aulad as did not provide "substantial portion to charity" and did not prescribe a time-limit "not too remote" for such charity. The effect of judgment was to upset thousands of Wakfs all over India. Mr. Jinnah believed that phrases like 'a substantial portion' and 'too remote a time' are vague enough to destroy the clarity which is essential for creating a Wakf. Jinnah was soon confronted with a serious obstacle, as to why could not the legal issue be taken up before the Privy Council in review (instead of a private-member Bill). But Jinnah succeeded in convincing the council that when a judgment nullifies a part of an established jurisprudence without an alternative, then the duty to correct the situation lies on the Legislature. Mr. Jinnah summed up his arguments "therefore, if I may put it in this way, you have cut off an important limb of the body of jurisprudence of Islamic Law and it has not been replaced by anything at all". M.A. Jinnah had established that Judiciary too has limits and sometimes final remedy may lie with Legislature only. Of course, the Bill was discussed section by section and clause by clause. It will not be possible to give the details of the proceedings. Suffice it to say that Mr. Jinnah demonstrated his complete knowledge of the subject. He quoted from jurists like Justice Amir Ali, Rowland Wilson, and even a Russian thinker in favour of the institution of Muslim Wakf as 'a most rational and happy solution of economic problems, which must have troubled parents solicitous about the future of their descendants'. He was able to pursuade even the non-Muslim members of the Council of the genuine need of the Muslim community. The Act when passed saved inter alia the large Wakfs of Nizam of Hyderabad, Nawab of Bhopal and Raja Mahmoodabad. It is pertinent to mention that under the present Constitutional dispensation of 2002, private members bills can be initiated both in the National Assembly and the Senate; a privilege previously reserved for National Assembly only. Mr. M.A. Jinnah was again elected to Imperial Legislative Council on 21st June, 1916. These were the times of First World War (1914-18) and British India was facing a wave of 'revoulutionary terrorism'. A wartime emergency measure namely Defence of India Act, 1915 and the Rules thereunder gave extraordinary powers to the executive in dealing with anti-State activities. The war was coming to an end the draconian law was to be replaced, but Indian Government not being too sure if the revolutionaries would stop their anti-British activities had quietly appointed a committee headed by Sir Sydney Rowlatt, a justice of the King Bench Division to deal with the post war scenario. Rowlatt and his committee consisting of two more Judges from Calcutta and Madras High Courts and a local vakil sitting in camera, had reviewed the situation, and drafted a law (Rowlatt Bill) allowing the Government of India to bypass the normal processes of law in dealing with 'activities prejudicial to the security of the State' the catch-all phrase of all totalitarian regimes. It may be noted that during this period (1909-1919) there were no political parties in the Imperial Legislative Council. The non-official members would associate on issue-to-issue basis. Yet a group of few came to be known as moderates and others as 'radicals'. M.A. Jinnah was considered a radical. Mr. Jinnah was the most outspoken critic of the Rowlatt Bills "There was no precedent or parallel in the legal history of any civilized country to the enactment of such laws", he said. He considered his duty to warn that "if these measures are passed, you will create in the country from one end to the other a discontent and agitation the like of which you have not witnessed, and it will have believe me, a most disastrous effect on the good relations that have existed between the government and the people". Did it matter to Jinnah if he was not elected on party basis? Or did he feel handicapped due to the fact that the elections to the Council were not direct? Hardly! In fact he in a confrontational tone posed the question as to why after 1906 bombs are being hurled? "What has happened to India, why there are all of a sudden in 1906 this signal of a bomb-throw and developments of this anarchical movement". "The cause", he said, "was because there is discontent; there is dissatisfaction; there is unrest". Then he went on to explain the importance of reciprocity between the government and the people by pronouncing "but you cannot ask us to help you prevent crimes when you lay down the policy without consulting us". As to the powers of executive to detain or search without warrants and bound a citizen to report his movements Jinnah was loud and clear that "no man's liberty should be taken away for a single-minute without a proper judicial inquiry". Jinnah was reminding the Englishmen of the cherished principle of the rule of law they claimed was their gift to the world. He concluded his speech by calling Rowlatt Act as "black law" and that the Government that passes or sanctions such a law in times of peace "forfeits its claim to be called civilized government". Legislative Council voted on this Bill, the non-official members went against the Bill, but the officials (all Englishmen) rubber-stamped the Bill and by their majority vote it became the Act. Jinnah immediately walked out of the Legislative Council and resigned declaring, "The fundamental principles of justice have been uprooted and the Constitutional rights of the people have been violated at a time when there is no real danger to the State". This was eloquence at its best because the eloquence exists not merely in the speech, but in the man, the subject, and in the occasion. The prophecy of Jinnah of extensive unrest came true leading to the tragedy of Jallianwala Bagh, Khilafat Movement and Satyagrah. The masses considered the Rowllet Act as an insult to the Indians. Under reformed Council Act, 1920 political parties could participate in the election though All-India Muslim League was reluctant to enter the Legislative Council. But M.A. Jinnah was convinced that the struggle for responsible government could be carried effectively only in the Legislature. So he fought election for 1923 as an independent and was elected unopposed. Legislative Council of 1923 now had a good number of members belonging to Swaraj Party and some independents. The former, had adopted a policy of obstruction and the latter under the leadership of Jinnah decided not to "wreck the system" and instead use it to advance the cause for a responsible government. May be there is some lesson in this for the members of Parliament of 2002 to learn from Mr. Jinnah of how to use the latent powers of the Legislature for structuring a government responsible to the people, rather than wreck the system. I was the Federal Minister for Parliamentary Affairs and Deputy Leader of the House during the period of 1965-69 when the unicameral Legislature the National Assembly was elected through indirect election under a Presidential system envisaged by 1962 Constitution. Mr. Noorul Amin a veteran politician was the leader of the House and the house consisted of many experienced and vocal members from East and West Pakistan. It is my experience that the voice of logic and sincere efforts for the cause of people on the part of the parliamentarians can never go waste, and ultimately influence the course of history. Parliament is a unique institution, which occupies a primary position among other organs of the State and depending on the moral and political strength of its members it can provide an effective check against the concentration of power in the Executive. In my view the sovereignty of Legislature is proportionate to the sum-total of the caliber of its members. Mr. Jinnah's contribution as a parliamentarian can also be judged by referring to the topics and subjects that he had dealt with. I may give a bird eye view of his participation by just quoting the captions of some of the bills and enactments on which he spoke. This will broadly indicate the extent of his interest in various national issues such as the Indian Coinage Bill, Passport Bill, Penal Code, Steel Industry (Protection) Bill, Land Customs, the Hindu Religious and Charitable Bills, Sikh Gurdawaras (Amendments) Bill, Trust Act, Maternity Benefit Bill and Special Marriage Act, Obscene Publication and Cinematograph Act, Merchant Shipping Bill, Insurance Companies and Trade Union Act, Contempt of Courts and Bar Councils Act, Income Tax, Gold Standards and Reserve Bank of India Bill, Hindu Child Marriage and Muslim Shariat Act, besides his full participation in all the budgetary debates. In addition, he moved or supported resolutions and adjournment motions relating to Indianization of the Army, demand for Dominion status; Reforms in N.-W.F.P. and, the rights of Press and Assemblies and the need for compulsory education. Let me take the readers into some aspects of Mr. Jinnah's contribution in the Legislature. For example when the Commander-in-Chief of Indian Army had stated that India could not do without a large percentage of British Officers to defend itself for a long time to come (1925). Mr. Jinnah could not allow such a statement to pass unchallenged and while intervening in a budget speech said that such a statement was "Not only amazing but most disappointing --- and that the Government deserves absolute condemnation and censure". Jinnah thereafter continued to press the Defence Department to recruit Indian officers in the Army and when on a subsequent debate Colonel Crawford on behalf of the Defence Department. Argued that Indianization of officers will take long time because "You can only make officers quickly if there is a civil war or revolution in the country". Mr. Jinnah got up and took the floor to say "Sir your statement was quite correct that officers are made by revolution or by actual war whether it is civil or international. It is a perfectly sound proposition. But do you want to try that method ? Probably if there have been no revolution in France, Napoleon would never have been heard of. It was the revolution that made Napoleon, and there are many Napoleons probably in embryo in India who may come forward and even excel your Commander-in-Chief. Are you going to try that method"? Government of India finally surrendered to his logic and agreed to establish military institutes in India which produced a tine crop of military officers who heroically fought the World War-II and later served India and Pakistan. Again when it came to the deportation of the Editor of the Bombay Chronical Mr. Jinnah supported the resolution moved by Mr. V.G. Patel "to remove all restrictions in the way of Mr. Horniman to return to India. He said the only reason why this Journalist was deported is because he was a lover of liberty and because he felt that the wrongs suffered by the Indians were as though inflicted on his own person". And he then went on to question the Government "Is that compatible with the dignity of any Government"? Is that the manner in which to treat the liberty of your subject?" Likewise speaking on a proposed press legislation he pleaded, "Protect those Journalists who are doing their duty and who are serving both the public and the Government by criticizing the Government freely, independently, honestly -- which is an education for any Government". Free press was thus borne in India because there were these courageous parliamentarians who could raise the voice in their defence. Moulana Zafar Ali Khan. Hasrat Mouhani, Ali Brothers, Hameed Nizami, Altaf Hussain and others knew that they could depend on Jinnah's support. This, duty has now fallen on the new members of Parliament 2002 who must raise their voices to protect those journalists who do their duty faithfully and honestly and accept their criticism as an education. Supremacy of Parliament and free press are the twin partners who cannot flourish in the absence of the other. Earlier, I had mentioned of the committee system. in the Parliament, which is a very effective machinery for facilitating and supplementing the functions of the Legislative wing. In USA various committees are working like beehives on which members interested or having experience in particular subjects are appointed/selected. These committees are legislatures' think tanks. Some of the very powerful committees are the public accounts committee, foreign affairs committee or committee on education, space technology and defence. Unfortunately the history and record of committee system in Pakistan had been disappointing and deplorable, as many members on the committee used the proceedings of the committees for drawing extra TAs and DAs with no corresponding output. But Mr. Jinnah took the note of committees seriously. He chaired or served on many committees such as committee against Press Act, Special Committees on Indian Coinage, and on needs of Steel Industry, Trade Union, even Special Marriages Act and Criminal Law Amendment Bill or Hindu Child Marriage Bill, Succession Act, Indian Law Reports Bill and Contract Act. Mr. Jinnah continued as an active and a respected member of the Legislative Council till 1935 when he was on the Constitution of Indian Legislative Assembly under the Government of India Act, 1935, elected from a Muslim constituency from Bombay. From now onward he acted as a leader of opposition being the leader of All-India Muslim League, which was the minority party while All-India Congress was the majority party. The very first statement, which he made as a 'Leader of his party' on 27-7-1937, was that League would co-operate with Congress. I am encouraged that MMA leaders have expressed similar sentiments in the NA 2002. Earlier period of the newly constituted Indian Legislative Assembly was devoted to discuss the Constitutional reforms introduced by the Act of 1935. Mr. Jinnah was very critical of over centralization and advocated more power to provinces. We know that issue of provincial autonomy is a recurring issue and even today is a live topic. The speeches of Mr. Jinnah in Legislative Assembly provide us the guideline that the role of Federal Government should be parental rather than authoritative. One of the very important law enacted in Legislative Assembly was Muslim Personal: Law (Shariat) Application Act. Whereas the entire debate and interaction between Sir Mohammed Yamin Khan, Mr. M. Asif Ali Khan. Sir Ahmed Nawaz Khan, Maulana Zafar Ali Khan, Maulana Shaukat Ali, Dr. Ziauddin Ahmed and some non-Muslim members are illuminating and fascinating. However on a matter relating to women's right it appears that there was a male-oriented attitude shown by such Muslim Members as were representing feudal interest, which prompted a reaction from Jinnah who said "Even today the economic position of woman is the foundation of her being recognized as equal of man and share the life of man to the fullest extent". It shall be quite interesting to see how 52 Ulema and 63 women representation in the National Assembly interpret this statement of the Founder of the Nation. A very sensitive issue came up in the year 1946 in Central Legislative Assembly relating to the officers of Indian National Army who were court-martialed but the Commander-in-Chief had remitted the sentences of most of the officers only one day after the sentence was announced. These were the officers who had become the prisoners of war of the Japanese Government but later formed a unit of Indian National Army with the object of helping the liberation of India and had fought the British soldiers on Burma's front. The trial of these officers had evoked countrywide sentiments in favour of these officers and they were looked upon as heroes rather than renegades. Now was the test of the intellectual honesty of Mr. Jinnah as to how would he deal with this multi-facet problem. I have read the speech of our Quaid on this matter and marvel on his clarity of mind and vision he had of Pakistan. Mr. Jinnah firstly criticized British Government for putting the members of the INA for a court-martial trial at a time when freedom of India was close at hand but proceeded to spell out the discipline and loyalty required by the armed forces by saying "When the time comes my army in Pakistan shall without doubt maintain all loyalty, whatever be the liability". Here was the role model of a responsible national leader. It will not be possible to complete this article without reference to the speech, which Mr. Jinnah made on his election as the President of the Constituted Assembly of Pakistan on 11th of August, 1947. Mr. Jinnah opened his speech by saying, "We have achieved (a homeland) peacefully and by means of a revolution of a greatest possible character". He then went on to admit that the first duty of a Government is to maintain law and order, so that the life property and religious beliefs of people are fully protected by the State. Then he spoke against bribery, corruption and evil of nepotism and insisted that if we want to make this great State of Pakistan happy and prosperous we should wholly and solely concentrate on the well being of the people, and specially of the masses and the poor, and of course lastly he called for religious accommodation and tolerance and his words need to be quoted over and over again. He said, "Now, I think we should keep that in front of us as our ideal and you will find that in course of time Hindus would cease to be Hindus and Muslims would cease to be Muslims, not in the religious sense, because that is the personal faith of each individual, but in the political sense, as citizens of the State. He took another opportunity on 14-8-1947 to emphasise religious tolerance when in reply to the speech of Lord Mountbatton the then Viceroy of India who had come to formally inaugurate the Constituent Assembly of Pakistan. He said: "The tolerance and goodwill that shown to the non-Muslims---dates hack thirteen centuries ago when our Prophet (p.b.u.h.) not only by words but by deeds treated (them) with the utmost tolerance and regard." We hope the members of Parliament 2002 shall pay attention to words of their Quaid as all those matters that he had pointed out on 11th of August, 1947 have to be attended even today. In fact there is greater urgency now.