NATIONAL RECONCILIATION AND THE SUPERIOR JUDICIARY
KARACHI, APRIL 9, 2004
In his speech after receiving unanimous vote of confidence in the National Assembly, Prime Minister Yusuf Raza Gilani proposed creation of a ‘Truth and Reconciliation Commission’ to promote national unity.

The purpose of any such commission can only be served if its scope is large enough, and the state institutions candidly admit where they went wrong and demonstrate willingness to adopt corrective measures.

Hitherto, there has been a general tendency to blame the armed forces, the bureaucracy and the political parties for the failure of democracy and lack of good governance in Pakistan. The role of the superior judiciary in supporting dictatorial regimes has largely been ignored.

In the euphoria created by the movement for reinstatement of pre-PCO judiciary, one must not be unmindful of the role that the superior judiciary has played in legitimating and validating constitutional deviations and outright subversions of the Constitution.

If the military generals, senior bureaucrats and politicians have shown scant respect for constitutional niceties, a compliant judiciary has connived in their unconstitutional actions.

Just to refresh one’s memory, a reference may be made to some landmark judicial decisions:

1. On 24 October 1954, Governor General Ghulam Mohammad issued a proclamation:

“ The Governor General, having considered the political crisis with which the country is faced, has with deep regret come to the conclusion that the constitutional machinery has broken down. He therefore has decided to declare a state of emergency throughout Pakistan. The Constituent Assembly as at present constituted has lost the confidence of the people and can no longer function.”

Although the Constituent Assembly met the next day and hurriedly passed what could have been the Constitution of 1954, it was physically prevented from meeting again on 27 October 1954 at the order of the Governor General.

This led to a legal battle.

The President of the Constituent Assembly, Maulvi Tamizuddin Khan, challenged the action of the Governor General in the Chief Court of Sindh. A full bench of the Court, presided over by Chief Justice George Constantine, gave its verdict in favour of Maulvi Tamizuddin Khan and nullified the action of the Governor General. The Governor General filed an appeal in the Federal Court. Under Chief Justice Muhammad Munir, the Federal Court by a majority decision held that since section 223-A of the Government of India Act, under which the Sindh Chief Court had issued the writ, had not received the assent of the Governor General, it was not a valid law and the Chief Court had no jurisdiction to act.

Subsequently, in response to Governor General’s reference, the Federal Court justified the dissolution of the first Constituent Assembly under the doctrine of necessity.

According to an analyst, “The judgment of the Federal Court in Tamizuddin Khan’s case paved the way for future justifications by the judiciary of patently arbitrary, malicious and capricious acts of the executive on hyper-technical grounds or self-serving theories or concepts.” (Hamid Khan, Constitutional and Political History of Pakistan, Karachi: Oxford University Press, 2001, p. 140)

2. On 7 October 1958, President Iskandar Mirza abrogated the Constitution of 1956 and imposed martial law. He appointed Commander-in-Chief of Pakistan Armed Forces General Mohammad Ayub Khan as the Chief Martial Law Administrator. The validity of the martial law came into question in the Supreme Court in what is called the Dosso Case. Chief Justice Muhammad Munir delivered the majority judgment: “ Where a Constitution and the national legal order under it is disrupted by an abrupt political change, not within the contemplation of the Constitution, then such a change is a revolution and its legal effect is not only the destruction of the Constitution but also the validity of the national legal order, irrespective of how or by whom such a change is brought about.” Relying on Hans Kelsen’s General Theory of Law and State, the Court further held: “Where a revolution is successful, it satisfies the test of efficacy and becomes a basic law-creating fact.” This was the most blatant example of validating the subversion of the constitution and declaring that might was right.

3. On 25 March 1969, President Ayub Khan deviated from his own Constitution of 1962 and handed over power to C-in-C General Agha Mohammad Yahya Khan who imposed martial law. It was only after Yahya Khan had gone that the Supreme Court in Asma Jilani Case showed the courage to declare him an usurper. The principle on which the Dosso Case had been decided was overruled by the Supreme Court in Asma Jilani Case as “unsustainable” and “not good in law either on the principle of stare decisis or otherwise.” However, validity was given to all necessary acts of the usurper.

4. On 5 July 1977, Chief of Army Staff General Mohammad Zia ul Haq deposed elected Prime Minister, Zulfikar Ali Bhutto, although an agreement between the government and the opposition PNA to hold fresh elections had almost been finalized. Zia ul Haq subverted the unanimously approved Constitution of 1973 and under Article 6 of the Constitution was guilty of high treason. The validity of martial law came into question in the Nusrat Bhutto Case. The Supreme Court validated the martial law as an extra-constitutional measure under the doctrine of necessity. The Court observed that “ it had found it possible to validate the extra-constitutional action of the Chief Martial Administrator not only for the reason that he stepped in to save the country at a time of grave national crisis and constitutional breakdown; but also because of the solemn pledge given by him that the period of constitutional deviation shall be of as short a duration as possible and that during this period all his energies shall be directed towards creating conditions conducive to the holding of free and fair elections.” According to the Judgment, Martial Law Orders were to be subject to judicial review. However, Zia ul Haq was authorized to amend the Constitution if and when necessary. Zia-ul Haq did not fulfil his pledge to hold early elections. Instead, he issued Provisional Constitutional Order in 1981 and sent several judges home. Others did not have any qualms in taking oath under PCO that replaced the Constitution of 1973.

5. On 12 October 1999, COAS General Pervez Musharraf assumed power in a coup that ousted Prime Minister Nawaz Sharif who enjoyed two-third majority in the National Assembly. In Zafar Ali Shah Case, the Supreme Court validated Pervez Musharraf’s Proclamation of Emergency and Provisional Constitution Order under the law of necessity. The Supreme Court adhered to the principles on which the Nusrat Bhutto Case was decided except that it gave three years to Pervez Musharraf to hold general elections in the country. (Iftikhar Mohammad Chaudhry was one of the judges who took oath of office under Pervez Musharraf’s first PCO.)

6. On 9 April 2002, Musharraf as the Chief Executive and President issued Chief Executive’s Order No. 12 of 2002 for holding of a referendum to get himself ‘elected’ as President for a five-year term. This Order was immediately challenged in the Supreme Court under Article 184 (3) on the constitutional plane as well as the touchstone of the Supreme Court’s judgment in the Zafar Ali Shah Case. On 27 April 2002, the Supreme Court gave a short order validating the holding of the referendum scheduled for 30 April 2002. However, the Court passed on the buck to the Parliament by stating: “As regards the grounds of challenge to the consequences flowing from the holding of referendum under the Referendum Order, apparently these questions are purely academic, hypothetical and presumptive in nature and are not capable of being determined at this juncture. Accordingly, we would not like to go into these questions at this stage and leave the same to be determined at a proper forum at the appropriate time.”


7. On 21 August 2002, Musharraf issued the Legal Framework Order with a view to drastically amend the Constitution of 1973. The most significant amendment under the LFO was restoration of Article 58 (2) (b), which empowered the President to dissolve the National Assembly if in his opinion the government of the federation was not carried on in accordance with the Constitution and an appeal to the electorate was necessary. The Supreme Court judgment in the Zafar Ali Shah Case had clearly restrained Musharraf from introducing any structural changes in the Constitution. The Watan Party challenged the LFO but its petition was dismissed on the ground that it did not have any locus standi in the matter. However, the Supreme Court observed; “The elected Parliament is in immediate sight and obviously the Parliament and not this Court is the appropriate forum to consider all these amendments.”

The above-mentioned judgments clearly indicate that the superior judiciary has avoided giving bold judgments and failed to guard the sanctity of the Constitution. Rather it has offered a helping hand in the subversion of the Constitution.

Not only this but on several occasions the brother judges have not stood by each other.

In the conflict between Chief Justice Sajjad Ali Shah and Prime Minister Nawaz Sharif the people of Pakistan were stunned to see the most bizarre scenes. The benches of a divided Supreme Court gave conflicting judgments and there were rumours about briefcases changing hands.

And what about the storming of the Supreme Court? No serious steps were taken against the culprits. Ultimately all those who were responsible for assault on the Supreme Court practically went scot-free.

When Musharraf decided to file a reference against Chief Justice Iftikhar Mohammad Chaudhry in the Supreme Judicial Council, the said body was formed in no time without giving any thought to its proper constitution. The brother judges did not wait for return of Justice Bhagwan Das, the second most senior Judge. Chief Justice Sabihuddin of Sindh High Court flew for Islamabad on first call.

When Musharraf made Chief Justice Ifthkhar Mohammad Chaudhry ‘non-functional’, Justice Javed Iqbal immediately took oath as Acting Chief Justice. He did not consult the Chief Justice Iftikhar Mohammad Chaudhry or wait for Justice Bhagwan Das.

And what about the role of Abdul Hammed Dogar, the PCO Chief Justice? Is he not his master’s most obedient servant? Despite being a direct beneficiary he validated the Proclamation of Emergency and Provisional Constitutional Order of 3 November 2007.

Most of the judges of Pakistan’s Superior Courts are capable of doing any thing and everything in the face of pressure and threats, and for perks and privileges (Read bribes): Right from judicial murder of Zulfikar Ali Bhutto to restoration of Nawaz Sharif’s government in 1993, which was said to be the result of ‘chamak’ (implying shine of money) there are ample evidences.

To ensure the supremacy of the Constitution and to strengthen the civil society, the ultimate aim should be to have competent and fearless people in the judiciary. The reinstatement of pre-PCO judiciary is not the solution; we need judges like Justice George Constantine, Justice A.R. Cornelius and Justice R. Kayani.

During last six decades we have witnessed that the executive is prone to appointing judges on the basis of their political affiliation and pliability. The judges who lack moral courage and who are not prepared to take principled stand for a just cause can never ensure supremacy of the Constitution or the rule of law.

In the constitutional package that is on the anvil necessary provisions should be made to ensure that the appointments in superior judiciary are based on ability and competence, uprightness and courage, and that the whole procedure and process is transparent.

It is also important that the judiciary is made independent of financial and administrative control of the executive.

After reinstatement of the pre-PCO judiciary, the stringent qualifications mentioned above should be applied on those who intend to continue. They should clear hem of any pending charges of misconduct.

President Musharraf had constitutional authority to file reference against Chief Justice Iftikhar Mohammad Chaudhry. He made a serious error of judgment in inviting the Chief justice to the army house and pressuring him to resign and in notifying him as ‘non-functional’. Thereafter the whole issue assumed an emotional character. The Supreme Court threw out the reference on technical ground. The substance, if there was any, remained untouched.

The parliament should form a committee to look into the charges of misconduct against the judges of the superior courts and, if there is any substance in them, it should recommend the federal government to file references in the duly constituted Supreme Judicial Council against the judges suspected of misconduct. Let the law take it normal course.
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