THE INDEPENDENCE OF JUDICIARY?
by
Justice (r) Dr. Javid Iqbal
There are two interesting opinions of eminent judges respecting the
controversial judgments in Tamizuddin Khan’s case, Governor General’s
Reference No. 1 of 1955 and Dosso’s case. Chief Justice (r) Dr. Nasim Hassan
Shah maintains that although the doctrine that a new legal order created by a
revolution is itself a law-making fact is of doubtful validity, it ensured
governance according to law rather than on the whims of a military
commander. He thinks that in the light of Dosso’s ruling the Martial Law regime
was made to realize that under the Law (Continuance in Force) Order 1958,
Pakistan was to be governed as nearly as may be in accordance with the late
Constitution of 1956, except to the extent where its provisions were modified
through an express order of the President or the Chief Martial Law
Administrator. (Address: Role of the Judiciary in maintaining Rule of Law in
Pakistan).
The second opinion is of Justice Yaqoob Ali Khan (as he then was) who has
observed that the judgments delivered in these three cases had a profound
affect on the constitutional development of Pakistan, that a country which came
into being with a written constitution providing for a parliamentary form of
government with distribution of state power, was converted into an autocracy
and eventually degenerated into a military dictatorship. (Observations in Asma
Jilani’s case: PLD 1972 S.C. 139).
The Judiciary is essentially a creature of the constitution. It was marginalized
when Pakistan had no constitution but whenever it had been ruled under a
constitution, the Judiciary as an institution was prompt to uphold the supremacy
of the constitution and the rule of law. For instance, when General Ayub Khan’s
?
This paper was written before the Presidential Reference to the Supreme Judicial Council for removal
of Mr. Justice Iftikhar Muhammad Chaudhry, the present Chief Justice of Pakistan, and his restoration by
the full Supreme Court.
Martial Law was ilfted with the promulgation of the 1962 Constitution, the
superior courts became assertive and proceeded to consider the matters
involving constitutionality of Martial Law Regulations as well as the ouster of
the jurisdiction of the courts. But when the 1962 Constitution was abrogated
and Pakistan was again placed under the Martial Law of General Yahya Khan
on 25 th March 1969, the courts were made to receded into the background
under the Jurisdiction of Courts (Removal of Doubts) Order, 1969 which held
the field until the removal of General Yahya Khan.
Soon after his removal, particularly between December 1971 and April 1972,
the Supreme Court did deliver some very important judgments including Asma
Jilani’s case in which Chief Justice Hamood ur Rehman overruled the principle
enunciated in Dosso’s case holding that it laid incorrect law and had placed the
country on wrong lines. General Yahya Khan was declared a usurper, and an
attempt was made by the Supreme Court to warn the future military
adventurers that if they took advantage of revolutionary legality and considered
themselves as the new law-givers, then they would be treated as usurpers. In
short the affect of this judgment was to reemphasize the power of judicial
review and to widen the scope so as to include reversing the principle of stare
decisis.
The important point to note at this stage is that the jurisdiction of the superior
courts was not only curtailed during the autocratic military regimes, but also
during the democratically elected civil governments. The 1973 Constitution was
based on the consensus of the elected representatives and the leaders of all
political parties. But Zulfiqar Ali Bhutto as Prime Minister, with a rubber stamp
majority in the National Assembly, made numerous amendments in it, including
those which curtailed the powers of the superior courts as is evident from 1st,
4 th, 5th, and 7 th Amendments of the 1973 Constitution.
The civilian government of Zulfiqar Ali Bhutto lasted for less than six years.
Then the army struck again and Martial Law was imposed in the country on 5 th
July 1977 by General Zia ul Haq. On this occasion, the 1973 Constitution was
not abrogated but was stated to be held “in abeyance”. When this action was
challenged, the Supreme Court reconsidered Dosso’s and Asma Jilani’s cases
and Chief Justice Anwar ul Haq laid down that the conditions prevailing in the
country justified the imposition of Martial Law under the principle of “state
necessity”, that the 1973 Constitution had not been abrogated, therefore, there
was constitutional continuity and that since it was held “in abeyance” for a
limited period, it did not amount to a revolution of the nature described in
Dosso’s case, but only a constitutional deviation necessitated by the
circumstances prevalent in the country. (PLD 1977 S.C. 639).
Since the Supreme Court had conferred upon General Zia ul Haq the power to
amend the Constitution, he made major amendments in the 1973 Constitution
inter alia to oust the jurisdiction of the superior courts to review the orders
passed by the Martial Law authorities and to remove judges from the High
Courts and Supreme Court who were not acceptable to the “establishment”.
After obtaining a five years term to continue as President through a
Referendum in 1984, General Zia ul Haq held general elections on non-party
basis. The Parliament elected in 1985 under the leadership of Muhammad
Khan Junejo adopted the heavily amended 1973 Constitution, including Article
58(2)(b) by means of the Revival of the Constitution 1973 Ord er (President’s
Order 14 of 1985). Consequently the superior courts managed to assert
themselves once again when the Martial Law was lifted. But from 29th May
1988 to 12 th October 1999 the constitutional history of Pakistan is dominated by
what can be called the era of “Presidential Authoritarianism”.
On 29th May 1988 the government of Prime Minister Muhammad Khan Junejo
was dismissed by President General Zia ul Haq under Article 58(2)(b) of the
Constitution. As a result of the general elections Benazir Bhutto, leader of the
Pakistan Peoples Party, was sworn in as Prime Minister. But on 6th August
1990 her government was dismissed and the National Assembly was dissolved
by President Ghulam Ishaq Khan under Article 58(2)(b). In the elections that
followed, Mian Nawaz Sharif’s Muslim League obtained majority in the National
Assembly and he was sworn in as Prime Minister. But on 18 th April 1993
President Ghulam Ishaq Khan dismissed his government and dissolved the
National Assembly in exercise of the powers conferred on him under Article
58(2)(b)
But on this occasion the Supreme Court set aside the order of the President on
the grounds that the action taken did not fall within the ambit of this provision
(PLD 1993 S.C. 473). As a result the National Assembly was restored. Mian
Nawaz Sharif obtained a vote of confidence and again became Prime Minster.
This judgment of the Supreme Court was a departure from the previously
established tradition. It was considered as a leap towards supremacy of the
Constitution and independence of the Judiciary. But it disturbed the
“establishment”. Prime Minister Nawaz Sharif inexplicably resigned and the
National Assembly stood dissolved.
New elections were held and Benazir Bhutto became Prime Minister for the
second time. Since her government was apprehensive of the newly found
assertiveness of the Judiciary, she embarked on a course to make the
Judiciary subservient to the Executive. Numerous devices were adopted in
order to tame and emasculate the Judiciary. However, Benazir Bhutto’s
government was dismissed and the National Assembly was dissolved by
President Farooq Ahmad Khan Leghari on 5th November 1996 exercising his
powers under Article 58(2)(b).
In the subsequent elections held in February 1997, the Muslim League won
with an over-whelming majority and Mian Nawaz Sharif became Prime Minister
for the second time. An amendment deleting Article 58(2)(b) from the
Constitution was hurriedly and unanimously passed by both the Houses of
Parliament, bringing an abrupt end to the era of “Presidential Authoritarianism”.
Unfortunately,
between
1997
and
1999
Pakistan
witnessed
another
Constitutional crisis in the form of a confrontation between Chief Justice Sajjad
Ali Shah of the Supreme Court and Prime Minister Mian Nawaz Sharif. In the
course of this confrontation the Supreme Court building was attacked by the
supporters of the Prime Minister and hearing of the cases could not be carried
out. On the other hand since Chief Justice Sajjad Ali Shah, who had
superseded three colleagues on his appointment as Chief Justice by ex-Prime
Minister Benazir Bhutto, did not apply the seniority principle in his own case as
laid down in the famous Judges case, his fellow judges remained alienated
from him. Eventually Chief Justice Sajjad Ali Shah was put under restraint
through the orders of his own colleagues, his appointment as Chief Justice was
held as illegal by a larger bench of the Supreme Court and thereafter he was
made to retire as an ordinary judge of the same court.
The moral of the story is that this “variety” of judicial activism without judicial
restraint can be self-destructive. In this clash between the Executive and the
Judiciary, the Executive survived unhurt but the Supreme Court was badly
bruised and mauled. It will have to lick its wounds for a considerably long time
before its health is fully restored. An illegally appointed Chief Justice by the
Executive is not in a position to teach a lesson to it, if he so desires, in isolation
from his colleagues. The superior courts’ judges must always keep themselves
equipped with a consensus of the judges, particularly on the issue of
maintaining independence.
Be that as it may, Prime Minister Mian Nawaz Sharif’s triumph was also short
lived. On 12th October 1999 Martial Law was again imposed by General Pervez
Musharaf. The Constitution was again held “in abeyance”. Mian Nawaz Sharif’s
government was dismissed and the Assemblies were suspended. As usual the
matter came up before the Supreme Court. The action was held as valid on the
ground of “state necessity/survival”. General Pervez Musharaf was granted
three years period for holding general elections in the country and for the
restoration of democracy. He was also given the power to amend the
Constitution without disturbing its salient features .(PLD 2000 S.C. 869).
This brief survey reveals that so long as the country was governed under a
constitution, the judges of the superior courts performed their functions to the
best of their ability in order to uphold the rule of law. The cons titutional crises
which jolted the country and led to the delivery of some controversial judgments
were not the creation of the Judiciary. The superior courts were called upon to
resolve conflicts which were political in nature and led to the imposition of
Martial Law under which the Constitution was either abrogated or held “in
abeyance”. In this scenario it was not easy to maintain the tradition of judicial
independence; on the contrary the judges deemed it fit to exercise judicial selfinterest i.e. to preserve the Judiciary or at least to make it survive as an
institution. They were aware that an opinion which ran contrary to the interests
of the “establishment” would not be acceptable. If they delivered a judgment
which was not going to be implemented, then their defiance may not be of
much advantage to them but it would be detrimental to the prestige of the
Judiciary, as the “establishment” could brazen-facedly remove the judges and
replace them or infest the courts with incompetent sitting or retired army
officers. Such an action would have passed unnoticed in a country like Pakistan
where there had never been any pressure of public opinion or the media for
upholding independence of the Judiciary. In this background the method of
reasoning employed by Chief Justices Muhammad Munir, Anwar ul Haq and
the others who delivered judgments on the same lines may be described as
one of “judicial prudence” or “judicial pragmatism” as opposed to “judicial
purism” reflected in the pronouncements of Chief Justices Hamood ur Rehman,
Cornelius, Ajmal Mian and the other eminent judges who followed the example
set by them.
The position at present is this that on the basis of a Referendum held in 2002,
General Pervez Musharaf is holding office of the President of Pakistan for a
term of five years. General elections were also held in 2002 and the 1973
Constitution had been restored with numerous amendments including the reintroduction of Article 58(2)(b). Parliament and Provincial Assemblies as well as
superior courts are functioning under the Constitution. The Head of State is
wearing two hats, one of the President and the other of the Army Chief of Staff.
He nominates the Prime Minster and the Prime Minister holds office at the
pleasure of the President. If the Prime Minister nominated by the President is
not an elected member of the National Assembly, the political party approved
by the President gets him immediately elected from a “safe” constituency. In
the present year i.e. 2007 the constitutional questions which the Supreme
Court may be called upon to determine are as follows:
1.
Whether the salient features of the 1973 Constitution are intact or
have been disturbed.
2.
Whether the President can contest election in uniform under the
Constitution.
3.
Whether the same Parliament can constitute an electoral college
for electing the President in uniform for the second term.
4.
Whether a newly elected Parliament is required under the
Constitution to elect a new President.
Since Pakistan is now being governed under a constitution, can one assume
that the doctrine of “state necessity” has been finally buried? The doctrine has
already been declared “false” by Chief Justice Ajmal Mian as it encouraged
illegal military take-overs and retarded or rather stunted the growth of
democracy in Pakistan. (PLD 1999 S.C. 504). Can we expect that the time has
now arrived when the superior courts, upholding the rule of law under the
Constitution shall adopt the course of “judicial purism” while deciding these
constitutional issues and discard the outdated, time worn and conventional
philosophy of “judicial prudence” or “judicial pragmatism”?