Hiranmay Karlekar
Besides the military, courts in Pakistan have been under severe pressure from Islamist fundamentalist elements. This puts a question mark against the judiciary’s role in upholding the country’s Constitution
Much has been said and written about Nawaz Sharif’s ouster as Pakistan’s Prime Minister under direction from the country’s Supreme Court. A considerable part or it is highly laudatory about the role of the country’s judiciary and its independence. The question arises: What has been the actual role of the judges, especially of the higher judiciary comprising the Supreme Court and the High Courts, in Pakistan’s polity?
There have doubtless been large blots on the escutcheon, underlining a tendency to bow to mighty executives, uniformed or otherwise. As early as in 1954, Governor Ghulam Ahmed dismissed Pakistan’s Constituent Assembly because its members could not agree on the architecture and provisions of the Constitution. The country’s Supreme Court upheld the decision.
More than 20 years later, Begum Nusrat Bhutto, wife of Zulfikar Ali Bhutto, had challenged before the Supreme Court General Zia-ul Haq’s imposition of martial law and the arrest of a number of Pakistan People’s Party leaders, including her husband, who had been ousted as Prime Minister in 1977. Her plea that the moves were unconstitutional was dismissed by the Supreme Court which invoked the doctrine of state necessity to justify its decision. The judgement conferred legitimacy on Haq’s dictatorship which, besides snuffing out civil liberties, accelerated the Islamisation of Pakistan’s military and society, which, in turn, accounts for much of the violence and instability afflicting the country.
The Supreme Court invoked the same doctrine to dismiss a case filed by Zafar Ali Shah and others in October 1999 following General Pervez Musharraf’s assumption of power through a coup. The difference was that while justifying military rule, it imposed certain restrictions on the Government’s powers and ordered the holding of general elections within three years. The seizure of power itself was not declared unconstitutional.
The Supreme Court’s independence has generally been against civilian authorities, such as when it ordered the dismissal of Prime Minister Yusuf Raza Gilani on June 19, 2012, under contempt of court charges. It also served an arrest order against Raja Pervaiz Ashraf, his successor, on January 15, 2013, on corruption charges. Asraf, however, survived in office to the end of his designated term on March 16, 2013.
It was only after Ifrtikhar Muhammad Chaudhry was appointed Chief Justice of Pakistan in 2005 that one saw the beginning of not only a genuine attempt to assert the Supreme Court’s independence but make it more efficient and reduce the backlog of cases. He not only expanded the scope and increased the number of public interest litigation but took suo moto action in a number of cases abuse of power and misuse of authority.
All hell broke loose in Pakistan’s ruling establishments in April 2006 when the Supreme Court ordered the cancellation of the sale of Pakistan Steel Mills on the ground that it was arbitrarily carried out, particularly since the case brought to light several irregularities in the functioning of the bureaucracy under Musharraf. During 2006, Pakistan’s military was further unhappy because the Supreme Court ordered intelligence personnel to appear before in cases connected with the disappearance of persons in the course Pakistani military’s so-called “war on terror”.
Chaudhry, who was called in by Musharraf on March 9, 2007, and asked to resign on charges of “misconduct,” refused to oblige. His suspension, which made him an iconic symbol of judicial independence and the rule of law, led to a massive upsurge of popular anger, a powerful lawyers movement, and his reinstatement as Chief Justice on July 20, 2007. Musharraf responded by imposing a state of emergency in November 2007, arresting Chaudhry and suspending 60 other judges. Musharraf’s political party, which supported his Government, was, however, routed in the general elections of 2008. Musharraf resigned under the threat of impeachment.
But Asif Ali Zardari, who succeeded him as President, also dragged his feet in ordering Chaudhry’s reinstatement. Followed another lawyers’ movement and a Long March led by Nawaz Sharif, leading to the reinstatement of Chaudhry and the personnel of the judiciary he had headed. Chaudhry stepped down in 2013.
The question now is whether the post-Chaudhri higher judiciary can stand up the the military the way he did. Pending that, one needs to hold back on pronouncing on whether Pakistan’s judges are lions or, to quote Francis Bacon from his essay entitled Judicature (written in 1612), “lions under the throne.” Bacon, who was a supporter of royal absolutism, and believed that judges should bow to the King, had futher said, “It is a happy thing in a state when kings and states do often consult with judges; and again, when judges do often consult with the king and state: the one, when there is matter of law intervenient in business of state; the other, when there is some consideration of state intervenient in matter of law.”
Bacon’s position was strongly challenged by the Chief Justice of Brtain, Sir Thomas Coke, who notwithstanding his pronouncements to the effect that judges had a duty to respect royal prerogatives and power.
In mitigation of the Pakistani higher judiciary’s indifferent record, one must also take into consideration the fact that it had been laboring under severely adverse circumstances. For one thing, its powers do not extend to the tribal areas of the north-west, except otherwise provided for, as well as Pakistan-occupied-Kashmir and Gilgit Baltistan, which have separate systems of judicature. Its powers have also been subjected to abridgement.
Thus the Constitution of Pakistan, as promulgated during the prime ministership of Zulfikar Ali Bhutto, was given the specific mandate to safeguard the Constitution. Shortly thereafter, however, several amendments were carried ensuring the executive’s hegemony over the judiciary. Under Zia-ul Haq’s dictatorship, an autocratic and immensely powerful dictatorial dispensation, completely destroyed the institutional balance provided by the doctrine of separation of power.
Besides the military, the courts in Pakistan have been under severe pressure from Islamist fundamentalist elements in blasphemy cases and the law governing these. They have also been under pressure from these and jihadis in cases relating to terrorism. Judges have been threatened and attacked. All this puts a huge question mark against the Pakistani judiciary’s future role in upholding the country’s Constitution and the rule of law.