Prudence, impunity, and Pakistan’s jurisprudence
Paula R. Newberg
We seek to inculcate the belief that laws are not meant to be jealously preserved in jurisprudential tomes but to be applied, by activist judges, for the protection of the common man, and that the rule of law is an idea worth fighting for.
Muneer A. Malik, Supreme Court Bar Association, Dawn, June 2007
Whereas the Government is committed to the independence of the judiciary and the rule of law and holds the superior judiciary in high esteem, it is nonetheless of paramount importance that the Honourable Judges confine the scope of their activity to the judiciary function and not assume charge of administration … I hereby order and proclaim that the Constitution of the Islamic Republic of Pakistan shall remain in abeyance.
Proclamation of Emergency, November 2007
By legitimizing military takeovers, the judges have abdicated their role to defend the Constitution.
Justice (Retd) Saeeduzzaman Siddiqui, Newsline, May 2007
In the sixtieth year of Pakistan’s independence, its president, General Pervez Musharraf, went to war against its courts and judges. As the Supreme Court took up petitions challenging the disappearances of citizens,1 corruption in the privatization of state enterprises,2 the conduct of police and security forces, and finally, the questionable legitimacy of Musharraf ’s tenure and re-election bid, Musharraf took on the judiciary.
Within a short period of time, Musharraf removed the chief justice of the supreme court in March 2007, but was forced to return him to the court after public protests from the legal community and a formal restoration mandated by the Supreme Judicial Council.3 A few months later, fearing that the court would thwart his re-election bid, Musharraf declared a state of emergency, suspended the constitution, and promulgated a provisional constitutional order (PCO). He then fired more than 60 percent of the country’s superior court justices, stacked the courts with loyalists who were willing to swear their oaths to the PCO, and placed several lawyers and Supreme Court justices under house arrest. To cement his power, he removed the licensing of lawyers from professional associations, arrested lawyers who protested these attacks on the courts, and amended the Army Act to negate fundamental rights otherwise guaranteed in the constitution. The newly constituted supreme court validated Musharraf ’s constitutional revisions and on his re-election as president.4 In one short year, the safety of judges and lawyers, the integrity of judicial institutions and the foundations of the country’s jurisprudence were grievously compromised.
This was not the first time that the courts ran afoul of the executive. Musharraf had issued a previous PCO when he seized power in 1999, and in 2000 had promulgated an Oath of Offices (Judges) Order that required judges of the higher judiciary to swear allegiance to that PCO. General Zia ul Haq had done the same after imposing martial law in 1977. In both instances, the courts were cleansed of opponents to the ruling executives, providing pliant judges to rule on the legality of military-led governments.As a result, through the 1980s under General Zia, and for much of General Musharraf ’s tenure as well, Pakistan’s superior judiciary was not only assumed to be in league with the military, but also to be responsible for maintaining an executive-oriented judicial culture.
Pakistan’s judicial history reflects a calculus of conflict and convenience that highlights the incomplete resolution of the country’s fundamental political disputes and deep structural tensions between the judiciary and the executive. Since independence, Pakistan’s courts have lived in a juridical universe defined by a heavily bureaucratized, praetorian state that has never completed a transition to representative government. The regular imposition of military or emergency rule has consistently skewered constitutions for short-term political gain, systematically undercutting citizen rights as generals and presidents (often the same individuals) have strengthened their role in the state. As parliamentary leaders have sparred with presidents and military leaders in their continual efforts to re-equilibrate executive– legislative relations, the courts have been left to dangle between them, sometimes as victims of intra-governmental strife, occasionally as arbiters in the cause of constitutionality.When they have failed, the courts have contributed to an evolving culture of executive impunity in which anti-constitutional behavior regularly overrides promises of future good governance. This poisonous combination has repeatedly diminished the rule of law, limited access to justice, and deeply injured democratic development.
In the frequent absence of freely elected governing bodies, the superior courts have repeatedly turned their attention to the executive—whether civilian or military— and judicial dockets have consistently attended not only to the unfinished business of the state, but also to the soundness and validity of executive action. The judiciary has often functioned without a valid constitution, and Pakistan’s jurisprudence reflects a constant struggle to arbitrate in its absence. Under military rule, the courts have often acquiesced in executive actions that might otherwise be rendered unconstitutional. Under civilian governments, judges have occasionally tried, in their rulings, to impart a sense of judicial responsibility for the stability of the state, although that has meant devaluing participatory politics. In so doing, they have lurched from between active and reactive roles, in each instance underscoring the uncertain sources of their institutional powers and, too often, reducing their potential strengths.
Pakistan’s jurisprudence therefore remains inconsistent and idiosyncratic—long on prudence, occasionally short on justice, often intellectually compromised and always intensely, if retrospectively, political. When courts disagree with ruling authorities, they are considered independent—politically, if not jurisprudentially—but judgments contrary to presidents and parliaments often boomerang, leaving the judiciary under greater duress than before. When judging the executive-centered state, however, the courts have often found themselves complicit in its actions, and Pakistan’s jurisprudence understandably reflects this strained juridical environment. In all these senses, the judiciary has mirrored the weaknesses of the Pakistani state, even as political society has called on the courts to solve the problems that such weaknesses have inevitably provoked.
Musharraf ’s antipathy toward the judiciary reflected his difficulties governing the fragile Pakistani state. In particular, his commitment to the global anti-terrorism campaign led to significant abuses of fundamental rights in the name of strong executive rule. The court’s so-called “activism” on this and other matters became Musharraf ’s excuse to thwart the courts and, by extension, Pakistan’s vocal legal community. As it contested the sitting government, the 2007 supreme court’s docket and demeanor reflected 60 years of accumulated frustration about executive prerogatives, and the problematic role of the judiciary and judicial rulings.
The script for Pakistan’s troubled judiciary and jurisprudence has been written on the pages of discarded constitutions.5 Even when the superior courts have been allowed to function without explicit direction from the executive, a cumbersome state bureaucracy often tied to seemingly capricious politicians has limited formal judicial capacities and the breadth of court rulings. Motion has often been mistaken for progress: frequent changes in political leadership long ago turned the courts into interpreters for political systems whose constitutions did not, or could not, anchor the state. Over and again, the executive, the military or politicians have overstepped their roles, making the courts part of the problematic of the state, at the same time that they have been cast as the assumed arbiters of the damage done by the state, and even more tenuously, as catalysts for the state’s transformation. These tasks have been impossible to accomplish, whether separately or together, and have led alternately to contradictory rulings, timidity, self-justification, or creative fence sitting. Only recently have the superior courts turned their inclinations to expand the judicial role into sustained, outright confrontation about the substance of policy.
Courts create and respect precedent, and their formal interpretations of the juridical past influence, and are influenced by, their informal interpretations of the political and constitutional environments in which they work. For Pakistan’s courts, the foundation on which its early decisions were drafted was the disputed territory, ideology, and political practice of the country’s early independent years. Pakistan struggled to overcome the combined legacies of the 1935 Government of India Act, the 1940 Lahore Resolution, and the 1947 Indian Independence Act and the 1956 Constitution mirrored conflicted efforts of both the governor-general and a sequence of constituent assemblies to identify the political and legal theories that could and should ground the state. With the western provinces divided, and separated by India from Bengal in the east, the assemblies found it difficult to reconcile the diverse and potential meanings of political sovereignty, provincial autonomy, political representation and citizen rights, and religious and communal identity.Then as now, religious conservatives sought to ensure that sharia law would be supreme—that is, that secular law would comply with the Quran and Sunnah— and liberals sought to organize a pluralist state that can accommodate all religions and ethnicities. By 1956, after sustained litigation in the nine-year absence of a constitution, agreement was reached to amalgamate the western provinces into one unit, limit parliamentary authority, and define the powers of a strong governor-general, whose authority was meant to echo the colonial role inherited from the 1935 Government of India Act. The Objectives Resolution, a preamble that has been included in subsequent constitutions, paid respect to the ideas of Islam in an otherwise secular constitution. Fundamental rights were guaranteed and the judiciary was made nominally independent, but neither stipulation could ensure that the constitutional provisions would be respected.
The gap between constitutional ideal and political circumstance helped to divide a fractious polity. Neither the bureaucracy nor the military had much patience with politics, although both meddled quite freely with appointments, emoluments and policies, and experiments with emergency rule in lieu of electoral reform. This ensured that a consistent jurisprudence would not easily develop. Drafting constitutional text is a parliamentary, not a judicial responsibility, but as weak and changeable parliaments conflated their constitution-drafting and legislative roles, the electorate—and often, disgruntled politicians— turned to the courts to solve governance problems that would otherwise be outside the judicial ambit.
In 1958 martial law was declared through a coup d’état, adapting an emergency model used briefly in Lahore in 1953 to quell sectarian disturbances, and again by Governor General Ghulam Mohammed in 1954 to dissolve a constituent assembly. Although the period of formal martial law was relatively brief, it quickly led to the erosion of judicial autonomy under Field Marshal Mohammed Ayub Khan, who ruled from 1958 until 1969. After obtaining court validation of his coup d’état, and promulgating ordinances to indemnify his regime,Ayub Khan took on the task of creating a new constitution to replace the “amorphous document” of 1956. Among his goals for the 1962 Constitution were to reinforce presidential powers over representative bodies, limit provincial rights (while strengthening the hand of West Pakistan in the federation), and notably, circumscribe the power of the courts. Although Ayub Khan declared that “the courts are … the final arbiters of what is legal and binding,” his rule under the 1962 Constitution was designed to ensure the control of the executive over the judiciary: he allowed only circumspect dissent, whether from political parties or the courts, whose capacity to protect basic rights was limited.This rigid resistance to political debate became the constitution’s, and Ayub Khan’s, undoing.
Widespread agitation in both East and West Pakistan led to an extra-constitutional transfer of power in 1969 to General Agha Mohammed Yahya Khan, with a concomitant reversion to martial law. He confirmed past practice by limiting legislative authority, constrained advocates for provincial autonomy, and after gaining temporary judicial sanction for his rule, palpably restricted the role of the courts— actions that nonetheless did not persuade judges to resign their posts.6 As increasing public discord met with executive intransigence, the space for negotiation between East Pakistan and the center over provincial rights decreased. Although the 1970 elections were among Pakistan’s fairest, dissension between the provinces in their aftermath—West Pakistan would not cede the election to the majority from East Pakistan—led to the abrogation of the existing legal framework, devastating war, and finally, the independence of Bangladesh.
First as civilian martial law administrator, then as president and finally as prime minister, Bhutto oversaw the drafting of a new constitution, which was approved by parliament in 1973. Its passage was not easy, and dissenting voices raised issues that remain unresolved today: devolution and decentralization, the relationship between parliament and the president, and, by implication, the independence of the courts. For the first time, constitutional text unambiguously raised the status of the prime minister relative to the president, and guaranteed the separation of judicial and executive powers, even if the path to achieving court autonomy was not clarified. Almost concurrent with the passage of the new constitution, the supreme court partially reversed its earlier rulings on the validity of executive power transfers and, at the same time, expanded its concepts of judicial autonomy and power to ensure, in a sense, that constitutionalism would be given a firmer footing for the future. But conflict arose almost immediately: provincial rights advocates sought greater power in the federal relationship, setting the stage for armed struggle in Balochistan through the 1970s and constitutional amendments restricting civil rights. Civil libertarians warned that the uneasy relationship between president and parliament could fail, and that the government’s quick constitutional amendments restricting minority rights would easily undermine rights protections more generally. Both predictions proved to be accurate, and the end of the populist Bhutto era came four years later with General Mohammed Zia ul Haq’s coup d’état, and Bhutto’s subsequent, courtsanctioned, execution.7
Zia ul Haq’s malign manipulation of the political system set a juridical context from which Pakistan has yet to recover. His provisional constitutional order replaced the 1973 Constitution—euphemistically placing the constitution “in abeyance”—by martial law regulations and ordinances that were unequivocally exempted from judicial contest. Once again, ordinances were promulgated to ensure that the regime would be indemnified, leaving martial law authorities to function freely in pursuit of the military’s goals.8 So-called disloyal judges were removed from their positions, further politicizing the administration of a rapidly waning justice system as civilian institutions—including the courts— were replaced by the military. The 1973 Constitution was partially restored in 1985, but just as political society was becoming more restive in the late 1980s, and before he was able to amend or substantially redraft the constitution to ensure the primacy of the executive, Zia ul Haq and almost all his top military leaders died in a plane crash. Surprisingly, open elections were allowed, and civilian government—and the 1973 Constitution— returned to Pakistan under the rule of Prime Minister Benazir Bhutto.
None of the four civilian, elected governments between 1988 and 1999 completed a full term. Prime Ministers Bhutto and Mian Nawaz Sharif were thwarted by the unworkable relationships between military and civilian institutions, and both proved unable to redress the accumulated grievances that four decades of uneven governance had brought to the country. Neither confrontation nor accommodation with the military could save political rule: the troika of president, prime minister, and army chief proved to be self-defeating, and a constitutional amendment to provide titular primacy to the parliament further alienated the military. Conflicts between prime ministers and presidents about appointments, procedures and rulings once again burdened the courts.9 Bhutto profoundly distrusted those judges who had validated her father’s execution, and when the Supreme Court did not acquiesce in Sharif ’s power politics, his party members stormed the supreme court.10
By the late 1990s, four contentious problems plagued political competition: political corruption that led cumulatively to a growing sense that governance had eroded beyond repair; economic weaknesses, magnified after Pakistan’s 1998 nuclear tests that led to international sanctions; the rise of sectarianism, the parallel evolution of the Taliban movement in neighboring Afghanistan, and renewed tensions surrounding the prospects of sharia law in Pakistan; and continued conflicts along all Pakistan’s borders.
Unsurprisingly, Pakistan’s pendular parliamentary politics, which swung from liberal to conservative, secular to religious, and across the entire spectrum of economic and foreign policies, were often at odds with the army. This led Army Chief Pervez Musharraf to justify his coup d’état in 1999 as a critique of the 1973 Constitution, erroneous state policy, and of course, politicians.11 Musharraf ’s wariness of rough-and-tumble politics led to political manipulation, constitutional amendments to extend his regime’s tenure, rigged elections and, as with earlier regimes, disputes with the Supreme Court over the judiciary’s docket and judgments.The counterpoint to this domestic wrangling was the toll that terrorism took on the judicial system and individual rights protections in the wake of the events of September 2001, the resumption of war in Afghanistan, and perilous cross-border militancy and insurgency. Pakistan’s foreign and domestic politics converged in the denial of rights to the accused, including disappearances overseen by the military and intelligence agencies in presumed collaboration with foreign governments.All these actions underlined the fullness of the civil-military alliance symbolized by Musharraf ’s dual role as army chief and president, and embodied in a legal framework order that he shepherded through parliament as the Seventeenth Amendment to the 1973 Constitution.
These actions inevitably complicated the judiciary’s role, for once again the actions of the state were declared immune to judicial scrutiny or judgment.With parliament’s strength derived only from presidential patronage, and weary of imposed judicial subservience, Pakistan’s legal community forced the issues of constitutionality and judicial autonomy onto the public agenda. In late 2007, Musharraf assailed the presumption of the superior judiciary to review the propriety of his re-election, removed anti-government cases from the courts and, following past practice, unilaterally indemnified the emergency government against future legal challenge.
Despite the limits on its role, Pakistan’s superior courts have played critical—although rarely incisive, transformative, or progressive—roles in formulating or judging the arrangement of state power and authority. The courts have rarely acted as impartially as constitutions might have optimally decreed, but they have equally rarely submitted fully to the strictures imposed on them by overweening executives. Unsurprisingly, the country’s contingent, conflicted jurisprudence has provided unclear guidance for the state. Its signal jurisprudential principles—articulated in the double-barreled doctrines of necessity and revolutionary legality that justified coups d’état and the retrospective validation of unconstitutional appropriations of power—have been fundamentally detrimental to the development of a democratic state. Although it can be argued that the courts have helped to maintain a state whose powers are based on coercion rather than participation or consensus, they have also been outlets for public discussions that were unavailable elsewhere: even when the courts have validated the misuse of power, they have, sometimes counter-intuitively and unexpectedly, provided arenas for open discussions of pressing matters of state policy when presi-dents, parliaments and generals have continued to disappoint or silence the electorate.
Pakistan’s difficult first years gave the judiciary unenviable tasks: negotiating the shoals of postcolonial governance meant setting a foundation for the rule of law while constitutionalism remained a distant aspiration. The 1950s judicial docket unwittingly set the ground for subsequent decades in two distinctive ways: first, by ruling on government actions in the absence of a constitution (and thus with startlingly insufficient legal grounding), and, second, by agreeing to validate government actions in ways that presaged its later legitimating roles for military governments and extra-constitutional actions. In their efforts to craft a legal language for the new state, they dealt with questions of justiciability and standing, and struggled with questions of legal doctrine that continue to color politics today.
From the first cases of the 1950s, Pakistan’s higher courts were occupied with matters that went beyond the usual judicial ambit, forcing judges to define their own roles in complex transitional environments. In quick succession, they ruled on the propriety of actions of the governor-general and the constituent assemblies, the contested nature of constitution making and the role of parliamentary prerogative, the rights of the executive to exclude opposing political voices, and more generally, the relationships between political power and legal authority.12 Responding to a reference on the governor-general’s power to dissolve an elected assembly and declare a state of emergency, the court raised (but did not resolve) three questions that remain salient—and largely unanswered—today: what counts as the normal functioning of the state, when does a political authority have the right to use power to alter state institutions, and how do laws and judicial institutions determine whether power has been exercised rightly?
These questions, regrettable in their provenance, proved to be even more unfortunate in their resolution, for they presaged two essentially contested questions about the state: the nature of democracy in the evolving polity—a choice articulated in 1955 “between the substance and the shadow” of democratic rule13—and the role of the courts in setting a political course. Perhaps most important, when the Supreme Court chose to define its authority and independence as separate from politics—meaning, perhaps, impartiality between and among political parties—it implicitly aligned itself with the executive rather than the legislative branch and in so doing, sullied the institutional neutrality it was trying to establish for itself.
These early cases also provided opportunities for the Supreme Court to articulate a self-justifying doctrine of state necessity that has shadowed Pakistan’s jurisprudence and politics ever since. Its 1955 advisory ruling confirmed that “an act which would otherwise be illegal becomes legal if it is done bona fide under the stress of necessity.” The court thus accepted not only the primacy of executive action but also the right of the executive—in this instance the governor-general, but in subsequent years almost any executive— to arrogate to himself powers well beyond those articulated in the state’s constituting documents.14
This implied alliance between court and executive set the stage for the court’s actions in the wake of the declaration of martial law in 1958. The constitution became disposable, democracy reverted to a theoretical end of governance rather than a means to achieve good government, and on the day after Ayub Khan’s coup d’état, the supreme court agreed—sadly, although inevitably—to adjudicate a constitutional problem in the absence of a formal constitution.15 It ruled that the usurpation of power was legally valid, thus equating force, efficacy and legality under the cover of a legal order promulgated by the usurping power itself. The doctrine of revolutionary legality, as it was then coined, took as its basis not the constitution—which had already been abrogated by Ayub Khan’s coup—but the seeming fact that the coup had been a successful way to challenge a constitutional order: “The revolution itself becomes a law-creating fact,” the court wrote, underscoring politically risky judicial functionalism even as it eschewed any serious analysis of the political events that brought the case to the bench, and reinforcing the notion that the court had allied itself against representative, rights-protecting governance.
With time, however, the high courts, particularly in East Pakistan, began to rule against the legal framework established by Ayub Khan’s 1962 Constitution. They posed serious questions about the laxity with which the legislature interpreted its constitutional mandate, the individual rights of citizens, and the assumptions about provincial autonomy and representation on which the state was based—in particular, Ayub Khan’s devolutionary basic democracies policy, the disqualification of politicians, and the civilianizing of martial law.16 Their rulings argued for the expansion of judicial review while at the same time accepting the government’s arguments for limiting political participation. In this way, the courts enlarged their formal purview, while leaving the substance of rights protections to legislatures (both national and provincial) whose powers to give substance to democracy remained disturbingly limited.17
This vacillating judicial approach was undercut by the extra-constitutional transfer of power from Ayub Khan to Yahya Khan in 1969, the resumption of military rule, and the imposition of a self-defeating legal framework order that became the prelude to the separation of East and West Pakistan. The end of war between the two wings of the state brought a new, albeit temporary, jurisprudence when the courts ruled belatedly against the discredited doctrine of revolutionary legality in Asma Jilani’s case.18 But power seeks its closest mooring. Although the supreme court retrospectively challenged Yahya Khan’s regime and the many instances of constitutional usurpation that preceded it, the new Bhutto government—which came into power under the aegis of military rule, and, against judicial advice, only later legitimated its authority and drafted a new constitution—nonetheless supported the doctrine of necessity as a way to anchor its own legality and legitimacy.
Pakistan’s supreme court was nothing if not cautious. Although it disavowed the rationale of revolutionary legality —one amicus curia called it “a standing menace”—it did not declare the 1958 coup d’état to be illegal, opting to offer Ayub Khan retrospective validation via the constitution he drafted after the fact. Instead, the court turned its attention to its future role: to distinguish good laws from bad, ensure the public welfare, and differentiate judgments about legality from those about political legitimacy. These were hardly viable tasks under circumstances of profound, post-civil war uncertainty, but from the point of the view of the courts, optimistic ones that put the new Bhutto government on notice that the courts were willing to play a significant role in the reconstituted Pakistani state.19
Once again, however, the superior courts found themselves navigating an unfamiliar and distressingly brief political transition. In the four years between the passage of the 1973 Constitution and its abrogation in 1977, the judiciary ruled on an enormous range of issues for which it was only partially prepared: economic and political federalism, democracy and emergency, and the prerogatives of an ideological government inclined to politicize state institutions. Pakistan’s first federal—rather than Westminster—constitution proved to be a challenge to adjudicate.20
Bhutto held military and civilian powers concurrently—not the first Pakistani leader to do so, and, of course, not the last—and the intersections of civil and military law under emergency rule impelled the courts to delineate carefully, in a series of habeas corpus petitions and challenges to preventive detention, the respective powers of the civil and military courts in order to ensure that the reach of the Army Act would be limited.21 In its later judgment in a case brought by the government against an opposition political party, however, the Supreme Court once again tried to be clever rather than consistent. It interpreted its role expansively—too much so, it seemed, for Bhutto—while at the same time accepting the government’s version of explicitly political issues rather than return them to the legislature.22 Paradox resulted: keen to underscore its own broad powers, the court aligned itself with government actions that were bound to redound negatively on judicial prerogative.The unfortunate habit of hewing to the will of extra-constitutional authority, even when costumed as valid law, eroded the necessary boundaries between civil and military law. As a national security state began to take shape under Bhutto, civil cases were transferred to military tribunals that, in turn, set aside judicial precedents intended, for example, to proscribe the use of torture.
Indeed, in a ruling on the expanding purview of the Army Act, the Supreme Court foreshadowed the opportunities for extra-constitutional authority in the 1973 Constitution. In a judgment published shortly after Zia ul Haq’s coup d’état, the chief justice reaffirmed the constitutional prohibition against the imposition of martial law, but speculated that, “if the Constitution is abrogated, set aside or placed in a state of suspended animation or hibernation, it might be possible to impose Martial Law outside the Constitution.”23 Such an action, he commented, “may or may not be justified by the doctrine of necessity.”
It was as if the supreme court was offering instruction to the military, and when the court was once again asked to judge the validity of the military takeover, it returned to old practice: the doctrine of necessity returned, almost without limit, and the doctrine of revolutionary legality was ignored.24 Zia ul Haq promised the courts that they would continue to operate, and in return the supreme court granted him the power to limit their jurisdiction to a degree hitherto almost unknown in Pakistan. In time, the peregrinations of misapplied doctrine took their toll. In 1981, when Zia ul Haq abruptly canceled the civil court powers that had been assumed in the necessity case, his rule was by implication legitimized by the otherwise discredited doctrine of revolutionary legality.
Had the court ruled differently, it is hard to imagine that the military government would have changed its course. Judges, after all, do not command army divisions. As years of martial law continued, however, it was hard to escape the conclusion that the superior courts had validated the execution of an elected prime minister and then presided over the near death of civilian justice. The longer term effects of judicial compliance were made clear when Zia ul Haq premised a 1984 referendum and a controlled election in 1985 on constitutional revisions that gave continuing legal effect to martial law, and provided immunity of unprecedented scope to all actions and persons involved in the martial law government.
However, stubborn politicians gave the high courts some opportunities to reverse themselves and reclaim some authority.The Karachi High Court had upheld the immunity of martial law regulations from judicial questioning, but in 1987, it decided that some military convictions could be challenged in civilian courts, and the Lahore High Court ruled further that Zia ul Haq had violated the doctrine of necessity by going beyond the promises he made when he seized power.25 In the same year, the supreme court heard a petition from Benazir Bhutto, the leader of the People’s Party, in its effort to reinstate the rights of political parties.The court underscored the inconsistencies of Zia ul Haq’s revived, mixed government constitution, a decision that pointed the way toward the reinstatement of political and electoral rights.26
Zia ul Haq died in the following year, shortly after dissolving parliament, and only after his death did the courts begin to assert that the constitution—in some form, never quite specified—should take precedence over any regime or administration, and the courts should be the constitution’s protector and interpreter.27 It was a shallow response to a deep problem, however, for both politics and law were left almost irretrievably tangled in Zia’s wake. Former parliamentarians wanted to be reinstated, new contestants sought polls, and the elected parliament led by Prime Minister Benazir Bhutto lacked sufficient power to override the martial law constitution.The best the courts could do, it seemed, was validate the fact of political change—an ironic nod to the old theme of revolutionary legality—and hope that a new political order would represent a step forward for constitutionalism and judicial autonomy.
The transition to civilian rule was a critical step in the evolution of the Pakistani state. When viewed through the retrospective lens of the law, however, hope triumphed over progress. Bhutto quickly tried to cleanse the supreme court of justices she deemed unworthy of appointment, setting the judiciary on edge before the real work of constitutional revision could begin, and giving rise to renewed suspicion that her party was keen to meddle with the instruments of justice. Neither Bhutto nor Sharif was able to transcend the complexities that four decades of civil-military rule had created; both were keen to create a new culture of parliamentary supremacy that, intentional or not, had the effect of vesting inadequate authority in the courts.The signal case during this period came early in Bhutto’s tenure, when the supreme court reviewed the eighth constitutional amendment.28 This was the law that Zia ul Haq had demanded as the price for lifting martial law in 1985, and that gave sanction to the president’s right to dissolve parliament.29 In step with popular sentiment to strengthen the legislative branch, the court sent the matter of the amendment’s validity back to parliament, where it languished until Sharif became prime minister. When it was finally revoked—a major piece of legislation, supported in rare concord by parliamentarians in both major parties—it set off a political confrontation between the presidency and parliament that contributed to the army’s growing distaste for parliamentary rule. Sharif tried as well to enact a constitutional amendment that would arm the prime minister with emergency powers equal to those of the President. Combined with disagreements over foreign policy, the economy and alleged corruption, these legislative efforts led almost inexorably to the end of Sharif ’s government.
Throughout the 1990s, therefore, the courts struggled with overtly political issues: the nature and limits of parliamentary rule, the problems that arise if courts ignore politics when judging constitutional issues, the intractable problems of parliamentary sovereignty, and the selective application of laws by beleaguered and weak governments.30 Equally important, judges came to realize that their own tenures were no more stable under civilian than military governments, and indeed, that the intensely political nature of even routine hearings could pose as many dangers to them personally as to the law and constitution.
The decade of parliamentary government came to a close in 1999, when Musharraf took the opportunities offered by disputes about foreign policy and domestic governance to depose Sharif and impose emergency rule.31 He followed Zia ul Haq’s model by combining the roles of army chief and president (initially calling himself chief executive), and Ayub Khan’s lead by refashioning governing bodies to cleanse them of traditional political leadership. The supreme court set a deadline for elections—a generous three years—but found itself nonetheless hampered by the new government’s curbs on the judiciary.The PCO of 1999 gave the president the authority to issue ordinances, overriding all other laws, including the constitution and, predictably, immunizing him from prosecution. Judges were required to take new oaths of office— although dissidents were instead removed or retired—and to agree “not to call into question or permit to be called into question” the validity of the PCO. When the PCO was challenged in Zafar Ali Shah’s case, an obliging Supreme Court cited the familiar doctrine of necessity to validate the coup d’état and subsequent constitutional amendments that did not “change (its) basic features.”The court, it seems, was immune to irony, for among those basic features was a chimera: the independence of the judiciary.
Like Zia ul Haq, Musharraf then choreographed a presidential referendum to ensure his tenure, and followed it with a Legal Framework Order in 2002 that restored the president’s powers to dissolve parliament, extended his term as both president and army chief for five years, and provided immunity to all actions taken since the coup.32 Some elements of this law were then included in the seventeenth amendment to the constitution, duly passed by the parliament—in return for a promise, later broken, that Musharraf would step down as army chief in 2004.33 A challenge to the seventeenth amendment failed when the court fully supported the government and agreed to the constrained democracy put in place by rigged elections.34
The supreme court’s prospective docket rather than its rulings were therefore the cause for renewed tensions between the executive and the judiciary in 2007, and, from Musharraf ’s point of view, with good reason. The supreme court’s last opinion, published after the 2007 emergency proclamation, took up the constitutionality of the new PCO. Its short opinion warned against the government’s taking actions contrary to the constitution and the independence of the judiciary, including the issuing of fresh oaths to the PCO.35 By the time the opinion was issued, judges had been sacked, a new roster of compliant justices had indeed taken such an oath, and the deposed judges had assumed an unaccustomed place at the vanguard of a movement to return Pakistan to constitutional rule.36 Their first target was Musharraf; their movement was critical in forcing him to step down as army chief after engineering his re-election as president.
The election of a new parliament in February 2008 was framed by a year-long boycott of the courts by the legal community that followed the dismissal and arrest of the chief justice and later, his colleagues. In that sense, the election underscored the importance of the judiciary’s status and independence, but it left many questions unanswered. Although the new ruling coalition initially promised to restore deposed judges and return to the 1973 Constitution, each party interpreted its intention differently: the politically ambitious Muslim League favored the unequivocal restoration of all deposed judges, while the majority People’s Party, negotiating with Musharraf (who retained the office of president) preferred partial restoration as part of a larger package of political promises and constitutional reforms that included indemnity for the emergency of 2007.37
Underlying debates about political efficacy were serious, if unspoken, questions about the meanings of justice in a state whose constitutions have been compromised for so long, the role of judges whose actions were complicit in the steady diminution of judicial independence, the proper venue for reviewing the content of legislation (including the federal sharia court), and the proper balance among the executive, legislative and judicial branches of government. Although the organization of state power has been the particular province of the superior courts, it has also affected the ways that Pakistanis have been able to redress grievances and secure their rights. In many ways, access to lower courts has for the most part been of only peripheral interest to those in power. As a result, Pakistan’s class chasms are reflected in the justice system, where corruption and inattention are rampant in the delivery of justice to the poor, and where defendants and lawyers assume that the abuse of state authority among the police is replicated in the judicial system.38
As if to correct these problems—but primarily to ensure that order is maintained even when the rule of law is not—special courts have occasionally been added to the civilian judicial system. Speedy trial courts were created in the 1990s, but were soon shown to deliver judgments (if not justice) at a slower rate than the regular courts. Special courts, used to dispense justice under special rules, seemed to bypass the rule of law, and many observers referred to them instead as “conviction” courts.Anti-terrorist courts, most evident during states of emergency, and particularly since 2001, have been used either to remove defendants from the ambit of civil law and rights protections, to secure convictions, or to sequester detainees when the rule of law is absent. Qazi courts—local level religious courts—have been peripheral, but the Musharraf government’s campaign to add them to the conflicted tribal agencies has led to suspicions that they would be instruments of the executive rather than voices for justice
The issues of injustice that permeate these systems of adjudication are of paramount importance as future parliaments take up questions of justice in Pakistan. It is the role of elected bodies, not the courts, to set aside Pakistan’s sad history of indemnity in cases of abuse of power so that the state can chart a clear course toward the democracy promised in the 1973 Constitution. The juridical doctrines of necessity and revolutionary legality that have permeated political discourse reflect the profound weaknesses of Pakistan’s governments, but they have offered little more than a language with which a distressed, disempowered and often alienated public has been able to voice its dissatisfactions with the state and its governing elites.
No matter how unsatisfactory the hand dealt to the courts by parliaments, presidents and the laws they have enacted, the judiciary— or at least, those judges who have chosen to remain on the bench during the worst of times—remains responsible for the misleading pragmatism and awkward prudence that has governed its rulings for six decades. A new compact is therefore essential for the country’s legal future, for no matter how firm the exhortations of judicial autonomy might be, they are meaningful only if governments and citizens follow judicial rulings. If they are ignored—as they will be ignored if the courts do not craft incisive, constructive rulings that look to Pakistan’s future rather than its past— then Pakistan’s judiciary will revert to its accustomed role as historian for a weak, and weakly governed state.
1 “Pakistan’s Supreme Court Takes Government to Task Over Missing Persons Issue,” 5 July, 2007, available at Open Source Center SAP 20070705094002.
2 Constitutional Petition No. 9 of 2006 and Civil Petitions Nos. 345 and 394 of 2006 (Pakistan Steel Mills Case).
3 Under Article 209 of the 1973 Constitution, the Supreme Judicial Council is a body comprised of supreme court and high court justices to whom the president must refer all issues concerning the performance or possible misconduct of superior court judges. No superior court justices can be removed from office without the concurrence of the council.
4 Masood Rehman, “Rebirth of doctrine of necessity: Emergency and PCO validated,” Daily Times (Lahore), 24 November, 2007; Nasir Iqbal, “SC hands out clean chit to Musharraf,” Daily Times (Lahore), 24 November, 2007.
5 For a full discussion of these issues, see Paula R. Newberg, Judging the State: Courts and Constitutional Politics in Pakistan (Cambridge: University Press, 1994).
6 Dorab Patel, Testament of a Liberal (Karachi: Oxford University Press, 2000), p.101.
7 See Begum Nusrat Bhutto vs The Chief of Army Staff and Federation of Pakistan, PLD (1977) SC 657.
8 On the night of his coup d’état, Zia ul Haq promulgated The Laws (Continuance in Force) Order, 1977 (C.M.L.A. Order No. 1 of 1977). Article 1(2) mandated the continued functioning of the courts, but article 1(3) suspended the fundamental rights portion of the constitution, as well as “all proceedings pending in any court, insofar as they are for the enforcement of any of these rights.” Judicial powers were undercut as well by Order No. 2, which stated that “provided that the Supreme Court or a High Court shall not have the power to make any order of the nature mentioned in Article 199 of the Constitution against the Chief Martial Law Administrator or a Martial Law Administrator or any person exercising powers or jurisdiction under the authority of either.” See The Chief Martial Law Administrator & All the Zonal Martial Law Administrators, Martial Law Regulations, Orders and Instructions, 4th edn (Lahore: Paw Publishing Company, 1983).
9 For example, the so-called Judges Case of 1996: Al Jehad Trust vs Federation of Pakistan, PLD (1996) SC 324 at pp. 363–67. See also Sajjad Ali Shah, Law Courts in a Glass House:An Autobiography (Karachi: Oxford University Press, 2001), ch. ix.
10 See Ardeshir Cowasjee, “Storming of the Supreme Court,” Dawn (Karachi), 31 October, 1999.
11 Sajjad Ali Shah, p. 671: Musharraf ’s military takeover came about “because the constitution did not provide any solution for the crisis with which the country was beset.”
12 For example, in Mohammed Ayub Khuro vs Federation of Pakistan, PLD (1950) Sind 49, the Sind High Court ruled that while the constituent assembly held powers both to legislate and to write a constitution,“there is no limit imposed upon the legislative powers of the Constituent Assembly sitting as a constitution making body.” In the Reference by His Excellency the Governor-General, PLD 1955 Federal Court 435, as well as in Maulvi Tamizuddin Khan vs The Federation of Pakistan, PLD (1955) Sind 96 and Federation of Pakistan et al., vs Moulvi Tamizuddin Khan, the courts ruled on the relative roles of the governor-general, the extent of the legislature’s powers, and the judiciary’s authority to limit executive authority. In Usif Patel and Two Others vs The Crown, PLD (1955) Federal Court 387 (Appellate Jurisdiction), the court limited the scope of the governor-general’s powers. These cases, and many others, highlighted not only the indeterminacy of popular politics at the time, but the inadequacies of state institutions at this early stage of independence.
13 “Pakistan’s Dilemma,” Civil and Military Gazette, 6 March, 1955, p. 4.
14 In Muhammad Umar Khan vs The Crown PLD (1953) Lahore 528, High Court Justice Mohammed Munir (later Supreme Court Chief Justice in the 1955 Reference) equated the declaration of military necessity by a military ruler with civil necessity by a civilian ruler. By 1958 the two forms of necessity were joined in a military coup d’état justified by a doctrine of civil necessity.
15 Dosso and Another vs the State and Others, PLD (1957) (W.P.) Quetta 9.
16 In Ayub Khan’s first years, the court acknowledged the absence of justificable rights and accepted its reduced power in The Province of East Pakistan vs Md. Mehdi Ali Khan Panni, PLD (1959) Supreme Court (Pak) 387, and in Mian Iftikhar-ud-Din and Arif Iftikhar vs Muhammaed Sarfraz and the Government of Pakistan, and vice versa, PLD (1961) Supreme Court 85, found it impossible to extend its jurisdiction under Ayub Khan’s writ. Once a written constitution was in force, however, the court found it easier to push for more balanced powers and the beginnings of rights protections. On conflicts between the executive and parliament, and the right to judicial review, see Fazlul Quader Chowdhry and others vs Mr. Muhammad Abdul Haque, PLD (1963) Supreme Court 486; on freedom of political speech, see Saiyyid Abul A’la Maudoodi et al., vs The Government of West Pakistan and the Government of Pakistan, PLD (1964) SC 673. In Government of East Pakistan vs Mrs. Rowshan Bijaya Shaukat Ali Khan, PLD (1966) Supreme Court 286, the Court reiterated the right of habeas corpus, despite deep divisions among justices about the effects of rights protections on executive prerogative. This debate continued in Malik Ghulam Jilani vs The Government of West Pakistan, PLD (1967) Supreme Court 373, which deepened the court’s debate about judicial prerogative and political speech.
17 When the Supreme Court in Snelson’s Case declared “the law of the country is what the judiciary says it is,” Ayub Khan responded that “any government worth its name should be in a position to control its Executive officers and rectify their errors.” Sir Edward Snelson vs The Judges of the High Court of West Pakistan, Lahore and The Central Government of Pakistan, PLD (1961) Supreme Court 237.
18 Zia-ur Rahman vs The State, PLD (1972) Lahore 382.
19 The revocation of revolutionary legality in Asma Jilani’s Case (Miss Asma Jilani vs The Government of the Punjab [sic] and Mrs Zarina Gauhar vs the Province of Sind and Two Others, PLD (1972) SC 139) became a reference point for the courts through the Bhutto years.
20 See Debates: Official Report, 10 April, 1973, and 1973 Constitution, Preamble and Article 2(A).
21 State vs Yusaf Lodhi, PLD (1973) Peshawar 25; Fakhre Alam vs The State and Another, PLD (1973) SC 525; Liaqat Ali vs Government of Sind through Secretary, Home Department, PLD (1973) Karachi 78. In the most important case concerning civil law and military practice, F. B. Ali vs The State, PLD (1975) SC 506, the Court claimed the traditional power of judicial review and allowed courts martial to keep powers provided by subsequent constitutional amendments.
22 See Zafar Iqbal vs Province of Sind and Two Others, PLD (1973), Karachi 243; Islamic Republic of Pakistan through Secretary, Ministry of Interior and Kashmir Affairs, Islamabad vs Mr.Abdul Wali Khan MNA (Reference No. 1 of 1975).
23 Darwesh M. Arbey, Advocate vs Federation of Pakistan through the Law Secretary and Two Others, PLD (1980) Lahore 206, and earlier, F. B. Ali vs The State, PLD (1975) Lahore 999.
24 Begum Nusrat Bhutto vs The Chief of Army Staff and Federation of Pakistan, PLD (1974) Lahore 7.
25 Nazar Muhammad Khan vs Pakistan and Two Others, PLD (1986) Karachi 516; Muhammad Bachal Memon vs Government of Sind, PLD (1987) Karachi 296.
26 Benazir Bhutto vs Federation of Pakistan and Another, PLD (1988) Supreme Court 416, and Benazir Bhutto vs Federation of Pakistan and Another, PLD (1989) Supreme Court 66; on indemnity, Federation of Pakistan and others vs Haji Muhammad Saifullah Khan and Others, (1988) PSC 338.
27 Benazir Bhutto vs Federation of Pakistan and Another, PLD (1989) SC 66.
28 Haji Ahmed vs Federation of Pakistan through Secretary, Ministry of Justice and Parliamentary Affairs and 88 Others, Constitutional Petitions D-76, 163, 168 of (1989).
29 See previously, Reference No. 1 of 1988, made by the President of Pakistan Under Article 186 of the Constitution, PLD (1989) SC 75, regarding the question of dissolution at the time of Zia ul Haq’s death.
30 On questions of judicial independence, see Government of Sind vs Sharif Faridi, PLD (1994) SC 105, on divesting district government officials of their judicial powers, and Mehram Ali vs Federation of Pakistan, PLD (1998) SC 1445; on the contentious questions involving appointment of justices, see Al Jehad Trust vs Federation of Pakistan, PLD (1996) SC 324 (the Judges Case), and Asad Ali vs Federation of Pakistan, PLD (1998) SC 161.
31 Former Justice Sajjad Ali Shah later noted that the military took power “because the constitution did not provide any solution for the crises with which the country was beset,” the same justification used by previous military governments in Pakistan and, more recently, in Bangladesh; Shah, p. 671.
32 Zafar Ali Shah vs Pervez Musharraf, PLD (2000) SC 869 unsuccessfully challenged the coup d’état, and Hussain Ahmed vs Pervez Mushrraf, PLD (2002) SC 853 unsuccessfully challenged the referendum. See also Qazi Hussein Ahmed, Ameer Jamaat-I-Islami, Pakistan vs General Pervez Musharraf, Chief Executive and Another, Constitutional Petition No, 15, 17–24 and 512/2002. Supreme Court Bar Association vs Federation of Pakistan, Constitutional Petition No, 1 of 2002 unsuccessfully challenged Musharraf ’s appointment of judges.
33 Zahid Hussain, “A Military State,” Newsline (Karachi), October 2004.
34 The case also challenged the “President to Hold Another Office Act of 2004” which was intended to clarify the relationship between Musharraf ’s two roles.
35 Proclamation of Emergency and Provisional Constitutional Order, Gazette of Pakistan,3 November, 2007; Order to Further Amend the Constitution, Gazette of Pakistan, 20 November, 2007.
36 See Library of Congress (US),“Suspension and Reinstatement of the Chief Justice of Pakistan; From Judicial Crisis to Restoring Judicial Independence,” Current Legal Topics (web), 20 March, 2008.
37 “Article Inserted by Musharraf,” and “New Article in PPP Amendment Bill,” Dawn (Karachi), 2 June, 2008. See also International Crisis Group, Winding Back Martial Law in Pakistan, Asia Briefing #70 (Islamabad and Brussels) 12 November, 2007.
38 http://www.adb.org/Documents/Periodicals/ADB_Review/2005/vol37–2/justice-all.asp# delays. See also Ali Saleem, “Inaccessible justice in Pakistan,”Asian Legal Resource Center, Hong Kong, 11 August, 2004.