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Role of Judiciary and the Challenges it faces

Courts gain relevance and power in weak or fragmented political systems, where no one institution or class can exert a preeminent hold over the state and political processes. Such has been the case in Pakistan, which has been a prime breeding ground for the judicialization of politics.

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Over the seven decades of Pakistan’s postcolonial history, the superior courts have evolved from marginal state institutions to prominent players in governance and statecraft. However, this transformation cannot be described as going from an apolitical role to sudden and dramatic judicialization of politics in the aftermath of the Lawyers’ Movement.

Pakistan’s superior courts have always been political institutions that have been called upon to adjudicate regime change and other issues of pure politics. In between these noticeable moments of constitutional crises, the courts have progressively strengthened their administrative law jurisdictions and expanded the judicial review of executive action.

Even as the courts ceded space to military regimes and civilian governments on their core interests, they consistently built a robust jurisprudential canon on the proper exercise of administrative power. Given that the most significant powers of Government have been exercised through the career bureaucracy, and increasingly through public corporations and regulatory bodies, the courts have fought hard to extend the purview of judicial review to the regulators of the economy.

Ultimately, the courts have extended the purview of judicial review to the elected executive in times of democratic rule. The evolution of judicial power in Pakistan may thus be characterized as the judicialization of governance as much as politics.

Much of the commentary on judicial developments in Pakistan appears to be driven by an evaluation that judicial involvement in politics is problematic per se, and hence the prescription that courts should eschew getting embroiled in political questions. However, there is little focus on how and why the judicialization of governance and politics has occurred. Without answering these preliminary questions, any evaluation or description will remain a mere matter of faith in liberal constitutionalism.

Read more: Pakistan Towards 2030 – Desperate need for legal and judicial reforms

Walk through history

Since Pakistan’s inception, it has had to face several challenges on the judicial front. The country’s seventy-four years has seen three stints by military dictators, initial bureaucratic rule, and a few decades, if all added up, of electoral rule by politicians. Unfortunately, the Judiciary in Pakistan has continuously been validating and endorsing the illegal acts of the military dictatorship.

The first of such instances is the case of the Federation of Pakistan versus Maulvi Tamizuddin Khan reported as PLD 1955 Federal Court 240 wherein the Federal Court of Pakistan (Now the Supreme Court of Pakistan) ruled in favor of the Governor-General of Pakistan’s dismissal of the first Constituent Assembly of Pakistan. The dismissal was legally challenged by Maulvi Tamizuddin Khan, the President of the Assembly.

Except for one dissenting opinion, the majority of the court supported the dismissal based on the doctrine of necessity. In 1955, the Federal Court led by Chief Justice Muhammad Munir ruled in support of the Governor-General. The court suspended the decision of the High Court and held the Governor-General, and not the Constituent Assembly, to be the sovereign authority.

The court opined that the Governor-General can only give royal assent as Pakistan was still a dominion and hence not a fully independent country. It decided based on technical grounds that the section of the Government of India Act of 1935 does not apply to this case because the Governor-General had not assented to it.

The second of such instances is the case titled State versus Dosso, and another reported as PLD 1958 SC 533, wherein a larger bench of the Supreme Court of Pakistan again validated/ legitimized the martial law of 1958 as a bloodless coup and a kind of peaceful revolution which was not resisted or opposed by the public, which was seen to imply that public is satisfied with this change or revolution, so, therefore, this martial law is legitimate.

Read more: General Raheel Shareef saved Pakistan from another Martial Law by ISI

According to the Supreme Court, Laws (Continuance in Force) Order 1958 is the new legal order instead of the Constitution of Pakistan 1956, which got abrogated, and this new legal order determines the validity of a law. Furthermore, it was held that the Constitution is abrogated; therefore, FCR 1901 is in force according to the Laws (Continuance in Force) Order 1958, which validated Loya jirga’s decision. After restoration, the Supreme Court decided the case against the decision of Lahore High Court with sole dissenting note by Justice Cornelius. Supreme Court bench headed by Justice Munir based its decision on Hans Kelsen’s General Theory of Law and State.

However, it was not until the case titled Miss Asma Jillani Versus Government of Punjab reported as PLD 1972 SC 139 that a larger bench of the Supreme Court of Pakistan went on to hold and declare General Yahya Khan as a “Usurper.”

Then again, in the case titled Begum Nusrat Bhutto versus Chief of Army Staff and Federation of Pakistan, reported as PLD 1977 SC 657, a larger bench of the Supreme Court of Pakistan by dismissing the petition challenging the imposition of Martial Law held that the then Chief Martial Law Administrator/Chief of Army Staff General Zia-ul-Haq had rightly imposed Martial Law.

Read more: Pakistan’s judicial mind thinks ‘justice rushed is justice crushed’

It did not stop here as then again in the case titled as State versus Zulfiqar Ali Bhutto reported, as PLD 1979 SC 53, a seven-member bench of the Supreme Court of Pakistan convicted and sentenced a former Prime Minister of Pakistan Zulfiqar Ali Bhutto to death in a case pertaining to the murder of Nawab Muhammad Ahmed Khan by a majority verdict of 4:3.

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Then again, the country had to face another setback at the hands of the Judiciary whereby the then President of the Islamic Republic of Pakistan, Mr. Ghulam Ishaq Khan, while invoking the provisions under Article 58 (2) (b) of the Constitution of the Islamic Republic of Pakistan 1973 dismissed the democratically elected Government of the then Prime Minister of Pakistan Mian Muhammad Nawaz Sharif on charges of corruption. The latter challenged the act of dismissal before the Supreme Court of Pakistan in the case titled as Mian Muhammad Nawaz Sharif versus Federation of Pakistan, reported as PLD 1993 SC 473, wherein a 13 member bench of the Supreme Court of Pakistan not only set aside the impugned action taken by President Ghulam Ishaq Khan under Article 58 (2) (b) of the Constitution of the Islamic Republic of Pakistan 1973 but also restored the Government of Mian Muhammad Nawaz Sharif and allowed the petition.

However, later when President Farooq Ahmed Khan Leghari removed the Government of Mohtarma Benazir Bhutto, the same was challenged before the Supreme Court of Pakistan in the case titled as Mohtarma Benazir Bhutto and another versus President of Pakistan and others, the short order of which is reported as 1997 SCMR 353 and the detailed reasons of which are reported as PLD 1998 SC 388, a larger bench of the Supreme Court of Pakistan by upholding the order of dissolution of assembly went on to hold that the provisions of Article 58 (2) (b) of the Constitution of the Islamic Republic of Pakistan 1973 had been validly invoked.

Read more: Rise of Judiciary in Pakistan: No more Lions under the throne

This was an altogether contrary view was taken by the Supreme Court of Pakistan to the one taken in Mian Muhammad Nawaz Sharif’s case. However, the act of compliance in question in both the cases was the same, i.e., the illegal dissolution of assembly in terms of Article 58 (2) (b) of the Constitution of the Islamic Republic of Pakistan 1973.

Then again, in the year 2000, the Constitution was abrogated and was held in abeyance. This time it was in the form of General Pervaiz Musharraf, former Chief of Army Staff who
later became the President of the Islamic Republic of Pakistan, wherein he imposed Martial Law and dissolved the democratically elected Government of Mian Muhammad Nawaz Sharif.

The said action was challenged before the Supreme Court of Pakistan in the case titled as Zafar Ali Shah versus Pervaiz Musharraf Chief Executive of Pakistan, reported as PLD 2000 SC 869, wherein this time also the Supreme Court of Pakistan held that the imposition of the Provincial Constitution Order 1 of 1999 was validly imposed and the Supreme Court of Pakistan through this very judgment also allowed a military dictator to amend the Constitution.

Again in the year 2007, the then Chief of Army Staff General Pervaiz Musharraf on the 3rd of November 2007 imposed martial law in the country by stopping the Chief Justice of Pakistan, Mr. Justice Iftikhar Muhammad Chaudhry, from not only going to the Supreme Court of Pakistan but also sent him on forced leave.

Read more: Not only Verdict but Special Court is Unconstitutional: LHC stuns in Musharraf case

The said act was challenged before the Supreme Court of Pakistan in the case titled Tikka Muhammad Iqbal Khan and others versus General Pervaiz Musharraf, and others, reported as PLD 2008 SC 178, a larger bench of the Supreme Court of Pakistan validated the steps taken by the then military dictator on the 3rd of November 2007. The steps taken on the 3rd of November 2007 were given legal cover by inserting Article 270-AAA of the Constitution of the Islamic Republic of Pakistan 1973.

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However, the country saw a change in the approach of the Supreme Court of Pakistan wherein, in the year 2009, the martial law imposed on the 3rd of November 2007 was challenged. A full court of the Supreme Court of Pakistan in the case titled as Sindh High Court Bar Association versus Federation of Pakistan reported as PLD 2009 SC 879, went on to declare the law laid down in the case titled as Tikka Muhammad Iqbal Khan and others versus General Pervaiz Musharaf and others, reported as PLD 2008 SC 178, as “ultra-virus” to the Constitution. The martial law/Emergency imposed on the 3rd of November 2007 was also suspended by a seven-member bench of the Supreme Court of Pakistan.

Worldwide judicialization of politics

This article has attempted to identify how the courts have shaped the judicialization of governance and politics through their public law jurisdictions and jurisprudence, providing the descriptive basis to undertake an in-depth analysis of the ‘why’ question. While that is a significant project in its own right beyond the scope of this article, some preliminary observations may nonetheless be made about how the Pakistan case study may add to the regional and global discussions on the judicialization of governance and politics.

The increasing judicialization of politics appears to be the norm worldwide, and most recently, courts in Asia have become noticeably activist. The literature on the judicialization of politics generally revolves around three explanatory frameworks, which may broadly be relied on to analyze the expansion of judicial power in a given polity.

The first (and arguably dominant) “liberal” set of explanations focuses on the spread of ideals of rights and the rule of law across the globe. While the traction of rights discourse may explain aspects of judicialization elsewhere, it provides little insight into the expansion of judicial power in Pakistan. As noted in this article, Pakistan’s courts have failed to develop a coherent rights jurisprudence and have essentially used their fundamental rights jurisdiction to vindicate their administrative and governance directives.

Read more: Opinion: How is Pakistan’s judiciary undermining its fragile democracy?

Ran Hirschl, an influential theorist on the subject, challenges the valorization of rights based constitutionalism as inevitable and inherently valuable and offers a critical class-based analysis of judicialization that may have greater explanatory power in the Pakistan context. Hirschl considers the judicialization of politics to be a product of strategic interplay and alignment of the interests of otherwise competing elites.

Hirschl thus sees judicial review centered on the adjudication of constitutional rights not only in terms of unelected courts dominating political decision-making but as part of a broader movement whereby political and policymaking power is shifted to semi-autonomous and professional institutions in general—and as a result to those classes and groups that have access to and influence upon such institutions.

Hirschl’s framework may help us understand significant aspects of the judicialization process in Pakistan. The courts’ assertiveness during periods of civilian rule can be partly explained by the alignment of the Judiciary with the military and its allied classes that have lost their grip on the state but find the courts a useful vehicle to reassert some of their power.

In every period of transition from military to civilian rule, the courts exhibited a renewed vigor and a conservative form of judicial activism that imposed limits on the social and economic policymaking by elected governments. However, while Hirschl’s analytical framework enables us to dissect some key aspects of judicialization in Pakistan, it fails to shed light on the developments in administrative law and the courts’ consistent challenges to the securitization of the state even under military rule.

Read more: Military Courts in Pakistan: Why and Why not?

A “functionalist” strand of the literature which accords greater weight to the strategic motivations and institutional incentives of judiciaries may have greater relevance than Hirschl’s “departing hegemon” thesis in helping us understand the judicialization of governance in Pakistan.

According to this analysis framework, courts gain relevance and power in weak or fragmented political systems where no one institution or class can exert a preeminent hold over the state and political processes. In such a scenario, several important and highly contentious issues end up by default before the courts, allowing judges to strategically expand the role of the courts in resolving critical political and social issues.

Such a process of judicialization is thus driven by the courts themselves, which seek to align with and hence use the support of various groups, classes, and institutional complexes at different times and around different sets of issues. Ginsburg and Moustafa’s analysis of the politics of courts under authoritarian regimes may help explain the judicialization of administrative governance, which has arguably been the most significant if not the most visible plane of judicial action in Pakistan.

Ultimately, however, the progressive expansion of judicial power in Pakistan may help highlight how fluid and dynamic the process of judicialization can be and that at any given time, a range of factors and players may contribute to the expansion of and resistance to a more assertive judicial role.

Read more: No judicialization but only democratization of democracy

The writer is an advocate high court practicing in Lahore and is a founding partner of Ahmed & Pansota (Advocates & Legal Consultants). He started his career with Cornelius, Lane & Mufti after doing Bar-at-Law from Inns of Court School Law, London, and was called to the bar at Lincolns Inn, London, in the year 2005. Barrister Pansota also figures as a legal analyst in a weekly talk show called Zanjeer-e-Adal on Capital TV and appears on other national TV channels. He also writes for various newspapers on current legal issues. He tweets @pansota1

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