History and Activism of Pakistan’s Judiciary

 

By R.K. Kaushik

The 13th April, 2018 Judgement of the Supreme Court of Pakistan in which former Prime Minister Mohammad Nawaz Sharif was declared disqualified for life has again brought into focus the role of the judiciary in Pakistan. A few days later on 26th April 2018, the Foreign Minister Khwaja Mohammad Asif was also declared disqualified to contest elections for life and to hold public office as an Interpretation of Article 62(i)(f) of the constitution of Pakistan.

The judiciary in Pakistan has lately attained a very high profile. During the recent times, judicial activism has led to a situation where it has ventured into the fields obviously belonging to the executive and legislative branches of the government. However it cannot be denied that the expansion in the judicial functions has largely occurred due to the space yielded by the other two organs of the State, because of the high incident of corruption and incompetence there. Infact, the judiciary in Pakistan is a leading institution that has played an important role in 71 years of its history. However, the legitimacy gained by it in the public eye is no small achievement. With rising expectations, the judiciary remains the focus of attention and at times the hope of the Pakistan. At the same time, it is targeted and the criticised by the people who are disappointed by its failure to perform and give justice with alacrity in ordinary judicial cases.

Among all the three organs of a democratic nation state as set out in the democratic constitutions, a well functioning judiciary is crucial to democracy, governance, security, economic growth, and equity No other institution has such a pervasive influence on so many aspects of daily life of a citizen and also on that of the government. The executive has perforce no choice but to comply with the directives of the courts, however unpalatable they may be. The legislature can take a cue from the courts decisions and bring about changes in the laws or amend the constitution but the process required for this is cumbersome. The judiciary, particularly the Supreme Court of Pakistan, enjoys vast powers under the constitution.

Democracy is based on liberal constitutionalism. It needs a well established constitutional and legal system that recognizes civil and political rights, equality of all citizens irrespective of religion, caste, ethnicity, or language and region. An independent judiciary ensures that the rule of Law is available to all citizens. The civil and political rights have to be protected not only from the excesses of state institutions and functionaries but also secured against powerful interest groups that resort to violence or a threat thereof against any particular community or region.

One of the principal components of governance is the rule of law, which carries significant weight in the overall structure and also shapes societal behaviour and conduct.

It is pertinent to mention recently, Nawaz Sharif addressed a press conference on 23rd May 2018 and blamed the Establishment for his removal from the post of Prime Minister. He mentioned that he was removed because he did not desist from filing cases against former President General Musharraf. However, he did not say lucidly that the powerful Establishment this time used Pakistan’s Supreme Court for convicting and punishing Nawaz Sharif and his family members and ministers.

After The partition of India, when Pakistan came into being, there was a serious effect on the judiciary as British India had a huge judicial system and structure which was now to be divided between the two newly independent countries. This meant the division of the courts along the lines of the partitioning of the provinces, the creation and establishment of new courts, and the framing of new constitutions for the newly independent countries.

At the time of creation of Pakistan, there were High Courts at Patna, Madras, Nagpur, Bombay, Lahore, Allahabad and Calcutta. There were Chief Courts in Sindhi and Oudh.

Many instances can be cited where Judiciary in Pakistan acted obsequiously and perspicaciously ingratiated itself to the powerful Establishment. The Moulvi Tamizuddin case in Nov 1954 in which the federal court of Chief Justice Mohammad Munir decided that President can dissolve the Parliament was one such instance.

Similarly in another case the Federal court decided that the Privy Council (Abolition of Jurisdiction) Act 1950 passed by the constituent Assembly is not a valid law.

When Ayub Khan took over on 27th Oct 1958- In the Dosso’s Case and later in Mehandi Ali Khan’s case the Pakistan Supreme Court held the validity of Martial Law in the country.

After the separation of Bangladesh and takeover of the Government by Mr. Zulfikar Ali Bhutto on 20th Dec, 1971- The Chief Justice of Supreme Court Justice. Hamdoor Rehman- a Bengali – was appointed to head a commission to enquire into the debacle and defeat of Pakistan Army in Bangladesh.

Soon after taking over Power, Bhutto came down with a heavy hand on his political opponents and on the editors and journalists who wrote against him. All these men were sentenced to various terms of imprisonment by special military courts under various marshal law regulations by the Lahore High Court.

These cases were challenged by the aggrieved persons in the Supreme Court. It was argued by the Attorney General, on behalf of the Government, that the judiciary could, in no way be concerned with the question of policy nor could it exercise the power to strike down any provision of the constitution on the basis of any other document, however important or sanctified it may be. He argued that the constitution, once framed and adopted, had become the organic law of the state and there was no power or authority that could exist outside the constitution. However, the court accepted its position- that it derived its powers and jurisdiction from the constitution and it had to confine itself within the set limits by which it had taken oath to protect and preserve.

Once the Bhutto government was deposed by Gen. Zia-Ul-Haq on 5th July 1977 and Martial law was imposed, the Nawab Mohammad Raza Kasuri Murder case was opened. The Lahore High Court bench headed by Justice Moulvi Mushtaq Hussain on 18th March 1978 sentenced him and four other officers to death and later his appeal was dismissed by the Supreme Court of Pakistan on 6th Feb. 1979 by a 4-3 decision. Bhutto was hanged on 4th April 1979.

After the judiciary helped the regime to eliminate Bhutto, it was no longer of any use to the military regime. It did not take long to lead to a confrontation, resulting in emasculation of judiciary and its complete humiliation and capitulation in March, 1981. From March 1981 until the death of Zia in August 1988, was perhaps the longest period when the judiciary had been reduced to complete damp squib. No constitutional matter of substance was either filed before or entertained by it during this period under the stewardship of Muhammad Haleem. However, after the death of Zia in Aug, 1988 and until the retirement of Chief Justice Haleem in Dec, 1989, Pakistan witnessed an activist Supreme Court under the same Chief Justice.

The Judiciary remained fairly active during the period of political governments from Nov, 1988 till 12 Oct, 1999; when Musharraf took power in a Military coup. Musharraf confronted the judiciary right away, with the result that chief justice Siddiqi and half of the Judges of the Supreme Court were forced out. The colluding members of the judiciary kept the judiciary silent and subservient to Musharraf until Iftikhar Muhammad Chaudhry took over as the chief justice of Pakistan in June 2005. The judiciary started reasserting itself under him by striking down the privatisation of the Pakistan Steel Mills, by opening the cases of missing persons and by holding the senior officials of the administration accountable before the courts. This led to confrontation between the Musharraf regime and chief justice Iftikhar, Mohammad Chaudhary leading to suspension of the latter and filing of reference before the Supreme judicial council against him for his removal. After his restoration in July 2007, there was a brief period of judicial activism until 3rd Nov, 2007, when Musharraf struck back and deposed the Chief Justice and the majority of Judges of superior courts. Musharraf nominated Abdul Hameed Dogar as Chief Justice of Pakistan and retained and inducted pliable Judges to obtain a verdict of validity of his actions of 3rd Nov, 2007. Dogar fully obliged and the emasculated judiciary under him served Musharraf and later his successor Asif Ali Zardari until his retirement in March, 2009. This was another period of complete capitulation by the judiciary before the executive. Restoration of Iftikhar Chaudhary as the Chief justice in March, 2009 ushered in an era of high judicial activism.

The judicial activism aggressively exercised by the Iftikhar Chaudhry court after his reinstatement in office. To many observers in Pakistan, the Supreme Court appeared to have gone overboard, stifling the working of the executive organ of government. Suo motu cases initiated by the supreme Court were justified in many instances but excessive display of judicial activism did adversely affect the political and economic conditions in Pakistan, causing disruption and uncertainty in orderly conduct of business of the state. A continuing battle with the executive arm of the government in matters of appointments, promotions, award of contracts etc., and the eventual removal of an elected prime minister at the orders of the Supreme Court in 2012 when Prime Minister Yusuf Raza Gilani was removed engendered a new type of jurisdictional ambiguity and policy unpredictability.

This phase has continued in last nine years and under the present Chief Justice of the Supreme Court Mian Saqib Nisar. The judiciary has usurped the role of Executive and from roads, hospitals, water supply, rape, murder, accidents to PIA’s selling and financial Amnesty it is putting spokes in every wheel and has virtually brought the government of Pakistan to a standstill. Also it has the full backing of establishment though discreetly. The disqualification of Nawaz Sharif or Jahangir Tareen of Imran Khan’s party Tehrike-e –Insaff is just a small clog in a big wheel. How long it continues with the support of establishment of Pakistan needs to be seen in future.

It is noticeable that the judges in Pakistan have not followed any coherent or consistent legal or judicial philosophy. The judiciary has generally been reacting to given situations, and at times the actions have been based on pragmatism, regardless of any consistent judicial norms or principles or philosophy. It is difficult to classify judges as liberals or conservatives, liberal interpreters or strict constructionists, judicial activists or proponents of judicial restraint. Certain Judges change their views according to exigencies. Expediency is known to have been a factor in the outcome of cases.

Thus, the approach of the judiciary at times has been transactional not based on long term considerations. The courts have shown a tendency to decide cases on short grounds rather than to lay down broad principles of law for the guidance of the courts in the future.

It is perspicacious that in Pakistan the law has ceased to be a deterrent to crime. The state’s effort to meet this situation by making penalties for offences harsher misses the point that the majesty of the law rests not so much on punishments as it does on the public belief that nobody can escape paying for his misdeeds and most wrongdoers believe they can get away with anything. Whether punishments given to political leaders can affect elections is to be seen in future.

That at present the judiciary acts on the discreet directions of Establishment (Army and its Intelligence agency Inter Services Intelligence) is confirmed. How long it continues is to be seen in future and whether the judiciary gets itself out from the control of the Establishment or not remains in the realm of posterity. The country goes to elections in July/ August 2018 with the powerful Establishment and its controlled Judiciary penalising Nawaz Sharif, his family and his ministers and party members. The outcome of such elections would generate keen interest to people and world at large.

The fact remains that Pakistan is poised at a juncture in history and July/ August 2018 elections are likely to see the democratic transition from one elected government to another. As a democracy, the only judicious way forward is for all its institutions and state apparatus, elected, appointed, and those in uniform like Army nay Establishment, to recognise and adhere to the first basic and most imperative principle in a democracy; a recognition of parliamentary supremacy. Whether Establishment ever allows it or not would be seen in future because Pakistan’s Establishment acts in mysterious ways.

R K Kaushik an IAS officer of Punjab Cadre and is working as Secretary to Government of Punjab. Follow him on kaushikiaspunjab@gmail.com

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