Judgment Days

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Yasser Latif Hamdani  August 10, 2012 | UPDATED 07:38 IST

Judiciary: Judgment days

Yasser Latif Hamdani on role of judiciary in Pakistan

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Yasser Latif Hamdani

The judicial history of Pakistan is as patchy as the political history of the country. What started as an impartial and secular institution imbued with the finest British traditions of justice and fair play has given way to a politicised theocratic institution vying for political power, while retaining some of the trappings of colonial grandeur (we still address the judges as "my lords" or "your lordships"). The evolution of Pakistani judiciary has to be seen in the context of three other factors in Pakistan's institutional structure-the parliament/executive, the army and religion.

Pakistan chief justice Iftikhar Muhammad Chaudhry with lawyers in Islamabad, 2008.

In the early years of the new republic the secular and modernist character of judiciary as an institution was self-evident in many landmark decisions, as in the case of the proceedings of the Court of Inquiry constituted in 1954 under Punjab Act II of 1954 to investigate into the disturbances in Punjab in 1953, which had been undertaken by religio-political parties such as Majlis-e-Ahrar and Jamaat-e-Islami, which had been routed in the 1946 elections, against the Ahmadiyya Muslim sect in order to undermine the Muslim League government. Sir Zafrulla Khan, the foreign minister in the League cabinet and one of the founding fathers of Pakistan, was an Ahmadi and a target of agitation by the Islamist parties.
The Court of Inquiry conducted a mammoth inquisitorial proceeding where the two judges, Justice Munir and Justice Kayani, interviewed Muslim scholars of every conceivable sect in Islam. Conclusions of this report make interesting reading. The judges were forthright in declaring that: 1. Pakistan was conceived as a secular state by Muhammad Ali Jinnah. 2. An Islamic state is a mirage not worth chasing. 3. There is no universal definition of who is a Muslim and it logically should not be the business of the state. 4. The agitation was the result of petty politics played by regional politicians to undermine the Muslim League government.
A judicial report of this kind of would be inconceivable today when Pakistan has established its own narrative of an ideological Islamic state as raison d'etre for the creation of Pakistan and has constitutionally declared Ahmadis to be non-Muslims for the purposes of law and constitution.

General Zia-ul-Haq announces a coup, in 1977.

The earliest blow to democracy in Pakistan was dealt by the judiciary through the Tamizuddin case reported as PLD 1955 FC 240, the ratio of which practically set off a downward spiral for the country. The point on which the case turned was essentially a technical one. In 1954 the Governor-General of Pakistan, Ghulam Muhammad, had dismissed the Constituent Assembly and replaced it with a council of ministers. Against this action, Tamizuddin Khan, the president of the dismissed Constituent Assembly, filed successfully a writ at the Sindh High Court under Section 223-A of the Government of India Act, 1935. Section 223-A had been inserted by the Pakistani legislature to provide for writ jurisdiction of the high courts. The Federation appealed to the federal court which, after tracing the history of dominion constitutions in the British Empire and Commonwealth, concluded that since the governor-general had not given his assent to the passage of Section 223-A, writ jurisdiction was not vested with the high courts.

Then Pakistani president Zulfikar Ali Bhutto addresses the nation, in 1971.

Then came the Dosso case PLD 1958 SC 553, which arose out of the status of the Frontier Crimes Regulations in Baluchistan, challenged legitimately as being ultra vires the Constitution of 1956, and which laid the basis for the doctrine of necessity which has plagued the country's constitutional history ever since. The Supreme Court through this decision legitimised General Ayub's military coup against the civilian government on the basis of Kelsen's theory of revolution and legal positivism which saw revolution as a legitimate means of changing the government. General Ayub Khan believed that parliamentary democracy was not suited to the genius of the people of Pakistan and that the country needed a presidential form of government where the President of the Republic was to be elected through a group of electors called "Basic Democrats". Basic democracy system was essentially a constitutional cover to the existing feudal social order as Basic Democrats inevitably were elected from rural notables and would inevitably support the status quo and the powers that be. In 1962, Ayub Khan enacted a presidential constitution embodying this complex system. The tumultuous events of 1969 and 1971, which led to the independence of Bangladesh, buried this constitution and its system, bringing the parliamentary form of government back in Pakistan.
The Dosso judgment was overturned in the Asma Jillani case PLD 1972 SC 139, which annulled Kelsen's theory of revolution as a valid legal principle. Unfortunately the triumph in this case was short-lived. General Zia-ul-Haq mounted a coup against Zulfikar Ali Bhutto's democratic government and this coup was legitimised through the doctrine of necessity or Id Quod Alias Non Est Licitum, Necessitas Licituin Facit-spelt out in those terms for the first time but in essence a variant of Kelsen's legal positivism-in the Nusrat Bhutto case PLD 1977 SC 657. In 1979 the judiciary presided over the judicial murder of Zulfikar Ali Bhutto.

The 1990s saw a tug of-war between the democratically elected governments of Benazir Bhutto and Nawaz Sharif and the judiciary.

General Zia needed Islam to legitimise his illegitimate rule and one change so effected was the creation of the Federal Shariat Court through a presidential order in 1980. This constitutional amendment made through presidential decree was later saved by the 8th Amendment to the Constitution. The Federal Shariat Court now exists as a parallel judicial track that deals with matters of Shariat. The establishment of this institution and the inability of other institutions to challenge the arbitrariness with which this court was introduced has legally and constitutionally established a theocracy in Pakistan. The impact of these fundamental changes in the nature of judiciary vis-avis the role of Islam in the state can be seen in two landmark judgments of shame-Qazalbash Waqf case PLD 1990 SC 99 and Zaheeruddin case 1993 SCMR 1718. Qazalbash Waqf case outlawed land reforms on the touchstone of Islam and Zaheeruddin vs the State legitimised violence by constitutionally ordained Muslims against constitutionally ordained non-Muslims, the Ahmadis.
The 1990s saw a tug-of war between the democratically elected governments of Benazir Bhutto and Nawaz Sharif and the judiciary with the Al Jehad Trust Case PLD 1996 SC 324 establishing judicial independence by making seniority of judges a key factor and defining "consultation" by the Chief Justice in appointment of high court and Supreme Court judges as a veto the Chief Justice could exercise in such appointments.
When General Pervez Musharraf mounted Pakistan's third military coup in 1999, the judiciary legitimised it and even gave Musharraf the arbitrary power to amend the Constitution. It was business as usual with the judiciary acting as a rubber stamp for the military ruler till in 2007 Chief Justice Iftikhar Chaudhry refused to resign despite pressure, leading to the so-called "Lawyers Movement". Chief Justice Chaudhry was restored on March 16, 2009, by the democratically elected government of former prime minister Yousuf Raza Gilani. Chaudhry's restoration started a fresh bout of tug-of-war between the judiciary and the executive in the form of the famed NRO Case, reported as PLD 2010 SC 265.
The NRO case pertained to the National Reconciliation Ordinance, 2007, which had given indemnity to certain persons from previous court cases, including President Asif Ali Zardari, and which was struck down by the Supreme Court. The Supreme Court then ordered the prime minister of Pakistan to write a letter to Swiss authorities to revive a case against President Zardari, which was not fulfilled by the then prime minister on the ground that it violates the immunity granted to the president of the republic under Article 248(2) of the Constitution. In 2012, this led to the Supreme Court's disqualification of the prime minister as the member of National Assembly and thereby effecting what many have described, justifiably, as a judicial coup against a democratically elected prime minister. The new prime minister, Raja Pervaiz Ashraf, has also refused to obey the order thus far and the coming days will determine whether Prime Minister Ashraf survives the onslaught of the judiciary or if he too is made to pack up and go home.
Pakistan's judiciary, with very few exceptions, has been a reactionary institution with very little to show by way of advance of civil rights of the citizens of Pakistan. On the contrary, it has legitimised military coups, dismissed and hanged prime ministers, overturned religious freedom, hindered redistribution of income and land and has been at the forefront of persecution of minorities in Pakistan. In recent years, the judiciary has grown more confident and is now a real threat to the functioning of democracy in Pakistan, heralding fears that the country is now heading towards the infamous Bangladesh model which has been tried and which failed in that country.
-The author is a Lahore-based lawyer and has written the forthcoming book Jinnah: Myth and Reality.

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