Asim Imdad Ali |
‘Let judges also remember, that Solomon’s throne was supported by lions on both sides: let them be lions, but yet lions under the throne; being circumspect that they do not check or oppose any points of sovereignty’: this is what Sir Francis Bacon (1561–1626) wrote ‘Of Judicature’. From that day it has been understood that judges can growl but not bite when the other power holders (executive organs of the state) misbehave with the citizens or trespass the law.
Many would maintain that even after the withdrawal of British power from the subcontinent, in 1947, this admonishment of Sir Francis Bacon was diligently heeded to by the August judicial institution in Pakistan. Consequently, the role of the superior judiciary on issues of executive authority remained opaque, peripheral and marginal, at times even muted with nothing emerging from its corridors except a “deafening silence”. The lordships stayed miles away from opposing ‘any points of sovereignty’.
Lest we forget even during this era one can indeed quote many isolated examples of individual brilliance where landmark decisions were delivered. There are many who reason that in that era – a continuation of the imperial Raj – justice was delivered between ‘the Indians’ or the ‘natives’ but when it came to questioning the ‘points of sovereignty’ (the new indigenous power holders), the lordships tended to heed to the cautionary words of Sir Francis Bacon and always stopped short of biting the other branches of the state.
The transformation from the “law of the ruler” to the “rule of law” is a journey that different nations started at different times and not all of them reached the same destination. Neither is this journey a linear one-way progressive upward march, in any society.
In the last one decade, however, this hitherto mute institution has started to live up to the dictum of judges across the Atlantic Ocean: the law is what we say to be the law. And the old judicial norm and the idea of fiat justitia ruat cælum ‘let justice be done even if heavens fall’ has been resurrected amidst widespread acclaim and considerable public support. This decade-long transformative journey, of Pakistani judiciary, has today brought us to a juncture, in our history, where words uttered inside the premises of the august institution have virtually become the dominant voice in the public sphere, often outshining the legislative branch and even the executive.
Before we start imagining us to be uniquely endowed or condemned, let us quickly recall that we are not the only people who have undertaken this odyssey. The transformation from the “law of the ruler” to the “rule of law” is a journey that different nations started at different times and not all of them reached the same destination. Neither is this journey a linear one-way progressive upward march, in any society.
It is also worth remembering that even those who started on this voyage ages before us, even today continue to aspire to the reach that ideal state where justice is indeed blind. The successful travellers on this arduous journey, everywhere on the blue planet, shaped and created their own sui generis solutions for balancing the three branches of state: the executive, the legislative and the judicial. Hence – what is little understood that – even the ideal destination may not be the same for all societies.
In our context, the colonial legacy meant we inherited an over-developed executive, a virtually non-existent or deeply divided (communal) legislature, and a considerably mute judiciary. Our endeavour to allow all the three branches of the colonial era to develop, under new challenges, never got off to a right start. Much maligned “Doctrine of Necessity” actually meant the acknowledgement and agreement by the judicial branch to serve as “Francis Bacon’s lions under the throne” In 1977 the executive once again took advantage of the divided parliamentary forces and an under-developed judiciary and we were back, once again, to the era of the unquestioned “law of the ruler”. Post-1977 the judicial branch came under the long knife as its jurisdiction, even at the apex level, was diluted and distributed between different benches of the apex court.
This interesting informal troika of executive (army chief), president (legacy of post-1977 amendments) and premier (legislative) was not a creation of any Pakistani law, a written arrangement or a formal declaration but was resurrection of Ludwig Von Rochau’s “realpolitik”.
In the post-1988 era, the executive did attempt to work with (or some may say play with) the legislative branch but the judicial branch still remained under-nourished and un-housed in the capital city. As Shakespeare’s King Lear says: ‘Thou art the thing itself. Unaccommodated man is no more but such a poor, bare, forked animal as thou art’. And the institution ‘of judicature’, which did not even have its own premises in Islamabad on the Constitution Avenue, worked and behaved no more than the ‘unaccommodated man’.
That is why the judicial branch, “Shakespeare’s unaccommodated man” could not even find itself a seat at the table during the post-1988 era when the new troika emerged, in post-Zia Pakistan, and made key decisions at the centre stage. This interesting informal troika of an executive (army chief), president (the legacy of post-1977 amendments) and premier (legislative) was not a creation of any Pakistani law, a written arrangement or a formal declaration but was a resurrection of Ludwig Von Rochau’s “realpolitik”.
So even in the post-1988 era, post-Zia Pakistan, no one thought the judicial branch needed a seat on the table. But this post-1988 troika cannot be brushed away under a heap of condemnation; its emergence represented some form of improvement, admittedly rough, from the days of one-window operation (1977-1988). Troika meant power was shared, a step towards plural and more representative governance. The new players on the table felt that they had some form of a share in the governance.
During post-1988 troika era, all key matters were decided through informal channels working between the president, the premier and the army chief. Non-papers on key issues were shared between the troika. This troika rarely worked harmoniously. Tough turf (and ego) battles continued for weeks or months. Mostly such matters remained grapevine whispered in power corridors but at times the clash became open – and found its way to pages of print media. The famous “I won’t take dictation” speech, that turned Nawaz (hitherto seen as GHQ’s creation) into a national politician in his own right, was an outpouring of that turf battle into the public arena.
Ideally speaking, the next steps ought to be co-equal development of all branches of the state and their more harmonious working, each respecting the sphere of the other, each focusing on improving its own functioning instead of pointing fingers at the other branches of the state.
Even when the judicial branch did try to speak (and restore the government dismissed by the president), the troika players went on with their turf-battles virtually oblivious to what the judicial branch had decided. In the end, the matter was settled not through the strength of law, but through Ludwig Von Rochau’s realpolitik.
In post-1988 troika era, not at all players exercised the same power or control over governance. Riding on the legacy of 1977-1988, the executive (army chief) continued to act as first among equals. One rule, however, emerged during this troika period: if two members of the troika joined hands, they would ease (or throw) out the third member of the troika. If the president and army chief joined hands, the premier could be shown the exit door. If the president and the premier joined hands, the army chief could be shown the exit door. We also saw both the president and premier leaving, as during the 1993 crisis, when army chief, then Gen. Waheed Kakar(first among equals), would not join hands with either of the other two members.
And during this period, the Francis Bacon’s “lions under the throne” philosophy continued to hold its sway over the judicial branch. Forget about the sovereigns in Islamabad, even the senior police officers would not bother to appear when summoned by the judicial branch and would instead depute their junior subordinates to appear with minimum possible (and mostly evasive and neglectful) replies and responses.
And the nadir, for the judiciary and climax for the political sovereigns, came in November of 1997 when hooligans officially arranged, from the power base in Lahore, went around freely attacking and damaging the newly commissioned accommodation of the august institution, on constitution avenue in Islamabad, and to remind the Francis Bacon’s lions, that their place exists merely under the throne, all this was shown on the media.
Any institution, including the judicial branch, will only retain its position in the troika with discipline and unity amongst its ranks. The supreme example of this is Pakistan army itself: it talks, it discusses, it debates, it disagrees internally but the voice that is heard outside the institution is always united.
In 1999 the executive finally once again emerged; took advantage of the divided parliamentary forces and a demoralized, humiliated judiciary and we were back to the pure era of the “law of the ruler”- the king can do no wrong. The judicial branch, licking its wounds, had not forgotten the 1997 episode and, no wonder, the new chief executive had a smooth sign off from the judicial branch.
Given this background of “Francis Bacon’s tamed lions”it’s indeed surprising that the attempt to put a muzzle on the institution in 2007 backfired even for someone as powerful as Musharraf. The Lawyers Movement of 2007 – supported by newly created electronic media of 24/7 TV channels – with the objective of restoration of the then Chief Justice of Pakistan became the trigger for the emergence of the judicial branch from under the throne. The unprecedented energy and force generated in favour of the restoration of the then Chief Justice transformed the judicial branch. And as history played out, the Chief Justice was not once but twice restored. The long knife did not tarry after the first cut and came right back with the second one but to no avail.
During the entire restoration movement, the Chief Justice himself did not utter a single word. As Shakespeare’s Antony says in Julius Caesar: ‘For I have neither wit, nor words, nor worth, Action, nor utterance, nor the power of speech, to stir men’s blood’. The lawyers leading the movement did all the talking, the speeches and the marches ‘to stir men’s blood’. In this crisis and in this fire was forged a special relationship between the judicial branch and the lawyers who spearheaded this restoration movement. In spite of many twists and turns, this special relationship continues to provide mutual support to both sides.
The twice-restored Chief Justice left no stone unturned to ensure that the institution he was heading gained strength on the back of that momentous, countrywide popular movement supported by media. In the momentum generated by the full restoration of the Chaudhary court, the institution started to flex its muscle and to exercise the full potential of its given, inherent and even assumed jurisdiction. Surely, not all agreed to the extent of the stretched jurisdiction, but lordships remained constant in space creation sometimes through suo moto assumption of the jurisdiction, and at other times digging deeper and deeper into the numerous (indeed endless) complaints submitted before the judicial branch.
The Lawyers Movement of 2007 – supported by newly created electronic media of 24/7 TV channels – with the objective of restoration of the then Chief Justice of Pakistan became the trigger for the emergence of the judicial branch from under the throne.
Slowly but surely the erstwhile institution that for decades did not even have its own office premises in Islamabad found the way to put itself in a position from where it started to become the arbiter of most legal and quasi-legal issues of the country. Whether it was a decision regarding disqualification of the premier or the matter of fixing egg prices, the matter somehow would land right in the lap of the institution.
In 1997 the apex court was the victim of a brutal attack, but after 2007 the same faces, names and characters who were behind the barbarians from Lahore, of 1997 attack, started to appear as complainants before the same court seeking justice. The peak of this new institution, a climax of this new reality, came in 2011 when the twice-elected former premier – in whose era barbarians attacked the supreme court – went personally to the apex court, stood in line and filed a complaint before the judicial branch.
The change in the status of the court as an independent and vibrant branch of the state, as a forum for resolutions, could not be more visible. This historic legacy of Chaudhary court has been carried forward and the lordships today do not mince their words and are willing to face the current power holders, of the erstwhile troika while exercising their powers and jurisdiction.
Three key factors helped the institution emerge from its old legacy of lions under the throne. First, the unity it displayed under its twice-restored chief, which was a remarkable feat in itself. Not long ago, whenever the institution was forced to reach a critical decision regarding the current power holders, as in 1997, its internal divisions were ably exploited by other branches of the state. This disunity evidently stymied its enhancement and growth.
In the momentum generated by the full restoration of the Chaudhary court, the institution started to flex its muscle and to exercise the full potential of its given, inherent and even assumed jurisdiction.
Ultimately, the institution had either to submit before the will of the current power holders, or had to find a compromise solution, or had to somehow wriggle out of the decision point itself (by remaining mute; as in most of Pakistan’s history). The unity exhibited by the institution under its twice-restored chief ultimately aided to provide it with strength and a voice.
Second, in the era of instant communication where media has enormous amplifier impact, the reach and impact of the words uttered inside the august premises, was phenomenal. This generated force and strength for the judicial branch. Even a question asked during the proceedings could be subject of discussion for many days. From mute days to the growling era to the ultimate roar, all this transition was supported and sustained through the special relationship of the institution with the new media world.
This special relationship ‘of judicature’ with the new media world was forged, just like the one with the lawyers, during the 2007 Lawyers Movement. This alliance is also mutually supportive: the judicial branch gets support for its decision from the media, and media get a stream of headlines from the judicial proceedings against current power holders: what better spectacle than a real ‘meraa sultan’ or ‘house of cards’ that is generated by trials and proceedings of power holders.
Thirdly, the 18th amendment to the Constitution of Pakistan of 2011 could not have been better timed for the judicial branch. One of the key features of that amendment was the demise of the erstwhile powerful role of the president. Suddenly the congealed legacy of Zia and Musharraf era (the presidential role) was abolished. The time had arrived for the newly emerging judicial branch to at last find its seat on the table of the troika, along with the executive (army chief) and the legislative branch (prime minister). Hence, the birth of new troika after the 18th amendment.
This historic legacy of Chaudhary court has been carried forward and the lordships today do not mince their words and are willing to face the current power holders, of the erstwhile troika while exercising their powers and jurisdiction.
This new troika is not the same as the post-1988 troika. There are two key differences. First, all three branches of the state now have seat on the table (trichotomy of the power of some sorts). In the post-1988 era, the judicial branch had no seat on the table of the troika. The executive, on the other hand, had two seats: the president and the army chief.
Hence, the current state of affairs could also be seen as an enhancement of previous arrangements; as it now makes the governance far more plural and representative than the post-1988 troika. The second variation to note is that in the post-1988 era, the army chief was first among equals. Today – despite lay speculations – there is no first among equals and there is no predatory control of one branch of the state over the other. Again, it adds to the plurality and a more nuanced balance of political power.
Ideally speaking, the next steps ought to be the co-equal development of all branches of the state and their more harmonious working, each respecting the sphere of the other, each focusing on improving its own functioning instead of pointing fingers at the other branches of the state. In this gradual and harmonious development of institutions lies the ultimate welfare of the people.
We may have taken a few baby steps on this road where the law of the ruler is left behind and the rule of law will prevail but there is yet no time to rest and there is no end of history scenario. We have previously experienced so many U-turns in this voyage that to allow ourselves to be mollified with the baby steps are taken so far would be premature and unwise. There is no denying the fact that each of the three branches of the state has miles to go before they can fix their own houses in order.
In this crisis and in this fire was forged a special relationship between the judicial branch and the lawyers who spearheaded this restoration movement.
Realistically speaking, it is clear that any institution, including the judicial branch, will only retain its position in the troika with discipline and unity amongst its ranks. The supreme example of this is Pakistan army itself: it talks, it discusses, it debates, it disagrees internally but the voice that is heard outside the institution is always united. It is a key lesson for other institutions also as it is not army alone that benefits from this disciplined approach.
When the legislative branch (political forces) remained united and disciplined during the 2014 dharna, the other two members of the troika had to respect its united voice and they did not support the dharna, despite many temptations and twists and turn during that period. And in 2016-17, as the Supreme Court decided the Panama Case leading to the disqualification of Nawaz Sharif all other players remained firmly united behind the court.
Asim Imdad Ali is currently a partner in an Islamabad-based law firm. He earlier served in Central Superior Services, at positions of increasing responsibility, in its prestigious DMG group (1992-2006), and later served as Head of legal and regulatory affairs in a major multinational company. He is LLB (gold) from Punjab University, LLM from Kings College London, and did Masters in Public Administration at Kennedy School of Government, Harvard University where he was an Edward S Mason Fellow.