60 years of Judiciary

From endorsement to denial

Huzaima Bukhari & Dr. Ikramul Haq

In the last 60 years of its existence, the State of Pakistan has faced a daunting challenge of establishing true democratic polity based on constitutional supremacy. The long military rules and in between experiments of “controlled democracy” has denied the people of Pakistan their sovereign right of self-governance, for which a long struggle was waged to secure independence from the British raj. We did get a ‘homeland’ on 14^th August 1947 but till today have failed to make it a “freeland” where the will of the people rules and their rights are respected and protected.

Our history is marred by anti-people and autocratic rules—both military and civilian alike—which were most of the time welcomed by the political elite. Besides various socio-politico-economic factors behind failure to establish a “sustainable democracy” and “responsible rule”, the role of judiciary has remained a subject matter of severe criticism for validating coups d’etat. Like all others institutions and organs, judiciary in the post-independence period suffered due to weak democratic traditions, fight between economic vested interests, rivalry of influential politicians and bitter power struggle between the landowner cliques and civil-military bureaucracy. If “Press and nation rise and fall together”, the same is true for Judiciary. No institution or organ of the State exists or works in isolation from socio-economic and political conditions. It is thus not something unusual that during the last 60 years, judiciary also got divided on political lines when deciding important cases wherein legitimacy of supra-constitutional takeovers disrupting the democratic process was called in question. Pakistan, unfortunately, has been confronted with many such disruptions in the last 60 years, which became a recurrent pattern in our political life, having long and arduous tenures.

On the eve of independence, we did inherit an independent judiciary having unquestionable reputation of competence and integrity. Mian Abdul Rashid, the first Chief Justice of Pakistan, was a man of impeachable character, who restrained from attending government gatherings and public functions. His successor, Justice Muhammad Munir, for his judgements in Maulvi Tamizuddin case [PLD 1955 Federal Court 240] and few others became controversial, though his critics have seldom realized that it was actually the failure of political elite that paved the way for recurrent unconstitutional rules and judiciary could not alone be blamed. One cannot, however, forget some of his great successors like Justice Shahabuddin and Justice A.R. Cornelius, who demonstrated high standards of judicial conduct even in the earlier tumultuous years of our political history.

Before analyzing the role of higher judiciary, let us have a look at few dreadful events of our political history that posed some crucial tests for judges:

• The first dark day of our constitutional history was 7^th October 1958 when the first Constitution of 1956 was abrogated and Martial Law was imposed by President Iskander Mirza. 
• The second Constitution of 1962, promulgated by a military dictator, was abrogated on 25^th March 1969 on the imposition of another Martial Law by General Yahya Khan and what ensued was the most tragic event of 1971.
• The 1973 Constitution was mutilated by another dictator, General Ziaul Haq, and during his 11-year despotic rule, numerous amendments were made that were later validated vide Article 270A, which still remains a dark patch on our constitutional and political history.
• Dismissal of two elected governments by a President using his discretionary powers under the 1973 Constitution. Military overthrow of an elected government on 12th October 1999, promulgation of PCO, LCO and what not for controlling State organs and retaining both uniform and the post of President till this day; even aspiring to continue like this for another 5-year term.

As evident from above, in post-independence years, the dilemma of our judiciary was that due to perpetual failure of political leadership, it was approached time and again to determine the validity or otherwise of capturing State power by the mighty with the barrel of gun. In The State v Dosso [PLD 1958 SC 533], Chief Justice Munir called it “successful revolution”, but Justice Hamoodur Rehman in Asma Jillani v Government of Punjab [PLD 1972 Sc 139] dubbed it as “usurpation”. In Begum Nusrat Bhutto v Chief of Army Staff [PLD 1977 SC 657] came another endorsement of the doctrine of necessity wherein “intervention” was declared lawful “in the best and larger interest of the nation”.  

In many later judgements pronounced by the honourable apex court, constitutional principles were laid down for striking down excessive and abusive exercise of powers by dictators against democratic institutions. The higher judiciary played its role in curtailment of arbitrary exercise of powers under the emergency provisions of the Constitution and protection of fundamental rights of citizens during military rules, for which reference can be made to some leading cases:

• Sabir Shah v Federation of Pakistan [PLD 1994 SC 738]
• Mohammad Nawaz Sharif  v Federation of Pakistan [PLD 1993 SC 473]
•  Federation of Pakistan v Aftab Ahmad Sherpao  [PLD 1992 SC 723]
• Ahmad Tariq Rahim  v Federation of Pakistan [PLD 1992 SC 646]
• Hakim Khan  v Government  of Pakistan [PLD 1992 SC 595]
•  Federation of Pakistan v Mohammad Saifullah Khan [PLD 1989 SC 166]
• Benazir Bhutto  v Federation of Pakistan [PLD 1988 SC 416]

The common people of Pakistan and students of history are seldom told that how courageously our judiciary worked under the dark periods of martial law, for which they were not responsible. On the basis of a few decisions (Tamizuddin, Dosso & Nusrat Bhutto cases etc], it is assumed that our judiciary has been expressing divergent views on the most vital issue of supremacy of civilian rule and supporting military takeovers. The constitutional experts and historians see it from a different perspective. The just-ousted-or-resigned (it hardly matters) Attorney General, Mr. Makhdoom Ali Khan, a brilliant lawyer who became wasted-talent-in-the-service of a military dictator, in his book, The Constitution of Islamic Republic of Pakistan, 1973, explained as under:

“It is also a fact that on each occasion when the army intervened in politics, public opinion was favourable to such intervention. When martial law was declared on October 7, 1958 the daily Dawn [in its editorial dated 12^th October 1958] welcomed the “peaceful revolution” as an “answer from heaven” and subsequently termed it a “sane revolution” which had brought about “a complete change of both system and regime…. without any strife or bitterness” Chief Justice Monir was therefore not the first to call the coup a revolution. In 1969 the position was not very different yet the Supreme Court acting on its own initiative and without much public pressure declared Yahya’s rule illegal. In 1977, can we ignore that it was the supposedly mature and democratic political opposition whose leadership repeatedly called out for army intervention. The point which the critics of the judiciary often overlook is that “the judicial performance must be judged as a part of the total legal performance”. The ultimate question should be not what our judges have made of the constitution but what we, our legislators and the judiciary the lawmakers as a whole – have made of the Constitution. The role of the judiciary cannot be evaluated in isolation. To condemn the judges for the present sorry state of our constitutional law is to substitute allegation for analysis. We must accept that the responsibilities lie with society as a whole and it is only when we have analysed the cause of our failure that we can by learning from the past build towards a better future”.

The critics of higher judiciary of Pakistan do not realize that it is the people’s will and power that alone forces the barrel of gun to renounce unlawful rule. Nowhere in the world has this task ever been performed by the judiciary. It is basically a political question and not a legal issue. Even if judiciary declares a coup detat illegal (as in the case of former Rhodesia now Zimbabwe), how can it force the usurper to abdicate? Judiciary has no power (physical) to get its order implemented by force? The responsibility for failure of political leadership in Pakistan to counter intervention of civil-military bureaucracy cannot be shifted to the judiciary. The result of lack of political wisdom of Pakistani leaders is obvious—complete subservience before dictators – military or civil hardly matters.

The force of people’s power was proved through historic struggle waged by the legal fraternity, supported by political parties and members of civil society, Above all it was due to masses of Pakistan that the period from March 9, 2007 to July 20, 2007 has become a landmark in our legal and political history. Restoration of the Chief Justice of Pakistan—which is not a decision in favour of an individual but a victory for justice— is a first step towards revival of true democratic civilian rule and independence of judiciary in Pakistan. In the wake of its historic order by the apex court, it is now the duty of all political parties, intelligentsia and representatives of civic society to act actively and responsibly to work towards revival of true democracy and civilian rule in the country. Instead of entering into polemics and rhetoric, they should strive to evolve a national consensus on a one-point agenda i.e. supremacy of civilian rule and independence of judiciary. The need of the hour is to ensure an independent judiciary, free from all administrative clutches and completely insulated from any outside pressure. We, as a nation must analyse the causes behind the present chaotic political situation. Every other day there is a suicide bomb attack or naked aggression against innocent civilians or unashamed ambushes of our security and law enforcement personnel. It is time that through national consensus and reconciliation we establish a true democracy, which is not possible without a free and independent judiciary. Political turmoil and unrest is the direct result of undemocratic rule and lack of dispensation of justice.

The Pakistan that the Father of Nation, Quaid-e-Azam Muhammad Ali Jinnah, had visualised remains in oblivion. Today, the nation faces the same challenge. What is required is certainly a ceaseless struggle for the consolidation and progress of a representative democracy. It must be highlighted that dispensation of justice is the main pillar of democracy. We can never establish representative democratic rule and a just society unless a free and independent judiciary is ensured. It is tragic that even after 60 years of our existence we are looking for ‘representative and sustainable democracy’. Democracy as understood in the classical theory and practiced in the West embodies some vital elements that are: fair and just electoral process, sovereignty of parliament, separation of powers, independence of judiciary, public accountability and rule of law. It is the first and the foremost duty of Judiciary to maintain the supremacy of Constitution, which is a sanctimonious document representing and expressing the supreme will of the people. Constitution is the fountainhead for other legislation. Thus, an Article in the Constitution enacted by the framers of the Constitution shall prevail over the one incorporated by the Chief Martial Law Administrator, where there is an irreconcilable conflict—Al-Jehad Trust v Federation of Pakistan [PLD 1996 SC 324].

Judges are known for exploring their conscience as well as the law books when they have to decide difficult political cases. They are neither power-brokers nor king-makers. We must not expect from judiciary what it cannot deliver. Judiciary’s role is that of interpreter of constitution and not that of law-maker (exclusive realm of the legislator). It is for the political parties and elected representatives of the people of Pakistan to make necessary changes in the 1973 Constitution, if desired and required, to make it a vibrant contract for all federating units, give them their due rights and defend the will of the people. Only the will and power of people can take a violator of Constitution to task under Article 6, for which punishment under section 2 of the High Treason (Punishment Act, 1973) , is death or life imprisonment.

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The writers (huzaimaikram@gmail.com) are researchers, legal historians, authors of many books, tax advisers and members of Visiting Faculty of Lahore University of Management Sciences (LUMS). They work for a multi-disciplinary law firm, HUZAIMA & IKRAM (www.huzaimaikram.com).