An Unexpected Birthday Gift

Feroz R Khan
Mar 19, 2007
The crisis of justice in Pakistan

The country has been gripped in the midst of a mindlessly engineered crisis, and the first words which come to mind are the words of Lord Alfred Tennyson’s poem “The Charge of the Light Brigade”. Someone, somewhere in the corridors and labyrinths of power had blundered. It was, upon , a case of bad and ill timed advice that ignited a constitutional crisis and unlike any previous crisis, this one has developed a momentum of its own and it is this momentum that has rattled the in Islamabad. The crisis, if it can be even called that, has not reached the proportions of a popular movement against the , but the mutterings of political in recall that most significant political opposition movements generally started out as expressions of repressed political protest.

The arguments which started the present political tête-à-tête in are eclipsed by other considerations, which penetrate deeper into the malaise that is affecting the state and require a more sober response than merely trading blame in a series of clumsily orchestrated accusations and denials. The problem did not simply start with the passage of a presidential reference against the Chief of , but with the compliance of the judiciary in itself with the policies of the executive branch in . The debate underlying the present constitutional issues of judicial independence and opinions of usurpation of power had been fermenting in since the time when the judiciary sided with the executive and passed laws that helped in dismissing the Constituent Assembly of in the 1950s. When the judiciary in created a legal expedient in the guise of “the doctrine of necessity” to condone an extra-constitutional act, it ended its own judicial independence and proved itself to be the handmaiden of executive branch of the .

Instead of being an impartial judge in constitutional matters, the judiciary simply sought to reinforce the arrogations of executive powers through legally fashioned fiats of constitutional rationales. As this state of affairs continued, unabated, and with each extra-constitutional power arrangement in being legally exonerated, the idea of separation of powers continued to wither towards an evitable in Pakistani politics. The independence of the judiciary continued to be limited, because instead of opposing power and influence over civilian power in , the judiciary’s justification of rule not only ended its own sense of independence, it also undermined the power of the legislative branch; the parliament in Pakistani politics.

Hence, it would be quite fair to suggest that the Judas in the of the idea of separation of powers in Pakistani politics and its complete dominance by the executive branch of the was the judiciary itself, which undermined the constitutional of the legislative branch in Pakistani politics. As William Shakespeare had said in his play Macbeth, no perfume of Arabia would be able to mask the smell of constitutional rottenness that emanated from the judiciary’s historic role in creating a powerful executive in at the expense of the judicial and legislative branches of . It was the complete and abject abdication of the judiciary’s constitutional role to uphold and protect the idea of a constitutional separation of power, in , that has placed the judiciary in a constitutional predicament in the present crisis.

Politics and political power, like nature abhors a vacuum, and when the judiciary helped to undermine the legislative branch of the and in doing, refused to carry out its own constitutional responsibilities, it invariably created a constitutional vacuum in Pakistani politics that the executive branch slowly and gradually occupied. The present political crisis was bound to happen and it is only a wonder that that it took so long to happen. When the judiciary tacitly gave up its independence in favor of the executive by neutering the legislative branch in through its legal decisions authorizing extra-constitutional power arrangements, it encouraged the executive to encroach upon its realm and to make a bid to overtly dominate it.

Therefore, the crux of the matter confronting the nation and its politics in the personification of the present crisis is not simply one of judicial independence, but rather of reinstituting a balance of power between the three branches of in . The solution to the crisis and the present political problems reside in the ability of all political stakeholders in to politically and constitutionally revive the idea of the separation of powers and to balance the , responsibilities and privileges of the three estates of the in an equitable and accepted manner. It is this issue; the raison d’ etre of the present crisis, which has given it the face of a constitutional crisis and it is a constitutional issue, because its salient caveat is, and must be, the restoration of the spirit and intention of the politically disabused and mauled 1973 of .

This raises the troubling question of the manner in which the 1973 will be revived, because of the prerogatives of political power in , which had imposed so many politically tainted amendments upon it since its creation and in the process, had altered its original intention. Pakistani politics, at the present is suffering from a massive trauma of a self-inflicted political injury due to its own past follies and is not capable of engaging in another exercise of constitutional craftsmanship and thus, it will have to address the present constitutional crisis through the flawed limitations of the existing . In doing so, it will have to constitutionally attempt to place a square peg into a round hole, because the present incarnation of the 1973 is heavily tilted in favor of the executive power, due to all the political tinkering and tailoring of the since 1973, to favor the dominance of the executive over the legislative and judicial branches of .

This is where the rub lies, because the executive branch of the will logically and naturally resist the dwindling of its political power by stonewalling the very constitutional, political, legal and parliamentary arguments that seek to restore and re-create a newly ordained separation of political powers in between its three branches of . Political power is the expression of a self-interest and the self-interests of the executive branch of the , in , would be loathe towards appeasement of its power and it is the inability of the executive to appease the demands of a resurgent judiciary and a rebellious legislative branch, that have framed the political contexts of the present crisis in . Ironically, the present crisis would have not manifested itself so acutely had the judiciary in not capitulated and appeased the political trespasses of the executive branch of the , due to its own legal rational of “doctrine of necessity”, because the crisis is in reality also a sad upon the judiciary’s visible lack of independence and its desperate attempts to maintain the illusion of an independence from the executive branch in .

Frederick Nietzsche once said that when a man looks into the abyss and it is only then he discovers his true character and same applies to the judiciary in in the present situation. It was only when the judiciary of was forced, through its own acts of constitutional omissions, into a political and constitutional cul-de-sac that it realized the gravity of its endangered role in Pakistani politics and now, when the judiciary is resisting the excesses of the executive power in its own domain, it is discovering that the executive branch of the is equally adamant in resisting, what its considers is judicial interference in its own realm of political and constitutional powers. Consequently, the origins of the present executive-judicial crisis in may have constitutional reasons; the crisis also resulted, in a more meaningful sense, from the inability of executive, legislative and judicial branches in to articulate and demarcate the boundaries of their constitutional powers and interests.

In order to understand and fathom the failure of the Pakistani politics to establish a separation of power between its three branches of , it is pertinent to define the role of a system of based on the ideas of separation of power. The separation of powers, as a political idea originated in the Age of Enlightenment and was borrowed by the framers of the American , from the French Baron Montesquieu’s political treatise in the late eighteenth century to create a new for the United States of America. The political idea of the separation of powers is generally associated with the American and has been generally considered as a constitutional mechanism to prevent the over-dominance of one branch of the by another one and thus, create equilibrium of political power amongst all the branches of .

However, the real reason behind the separation of powers, be it in the American or any other including ’s, is not to balance power as much as facilitate a sense of political compromises between the three branches of . The political genius of the ideal of separation of power is that it realized that political despotism did not come necessarily from an unequal distribution of power as much as it resulted from the refusal to compromise, by one branch of the , with the other branches/stakeholders of political power in a nation. A constitutional separation of power is not a guarantee against an unequal distribution of power, but it is a guarantee that political power, in a nation, will continue to evolve constitutionally on the premise of constitutional compromises between the three estates of the .

The inherent constitutional beauty of the separation of powers is that, by constitutionally balancing political power between the executive, legislative and judicial branches, it hopes to create a political grid-lock whereby all three branches have to mutually agree in order to ensure the smooth functioning of the . Hence, the political rationale behind the separation of powers is not so much as one of constitutional balancing of power, but rather to seek constitutional compromises that mandate a respect for all the estates of and in the process, create the idea that monopolization of political power, by one branch of the , will end the notions of political compromise. Accordingly, it would be the absence of political compromises, between the three branches of in a nation, which would define political despotism and tyranny in a nation’s politics and therefore, such a situation can even exist in a constitutional system in which the idea of separation of powers exists, but where there is no allowance for political compromises between its various branches of .

Unfortunately, ’s political history testifies to this fact that it was a lack of compromise between the executive, the legislative and the judicial branches of the , which foisted a sense of political injustice in Pakistani politics. In this sense, all three branches of in have to offer a mea culpa for their own role in creating this situation, over a period of years, which led to a sense of political inflexibility in ’s constitutional politics. The executive branch of the , in , can be rightfully blamed for its political in demanding more and more political power and deliberately undermining the political institutionalism in in order to promote its own political interests. Historically speaking, it was not only the refusal of the executive branch in to abide by the constitutional limitation on its political prerogatives, but the real political of was that the executive branch of the could not arrogate a constitutional monopoly of political power for itself without the active participation and abetment of the other branches of in the matter.

The Pakistani judiciary can held responsible for the unraveling of the constitutional provision of the separation of powers and in its own role in expediting the ingresses of the executive branch into the constitutional domains of the judiciary and the legislative branches. The unkindest cut inflicted upon the corpus of constitutionalism in
was by the legal actions of the judiciary itself, which whittled the spirit of the by providing the executive branch of the with legal-constitutional cover for its extra-constitutional acts. The judiciary not only provided the legal excuse to dismantle the infrastructure of constitutionalism in , but it also in an manner not befitting its constitutional role, sided with the executive against the legislative branch, which hastened the end of constitutionalism in Pakistani politics by destroying any vestiges left of an independent judiciary in .

In this whole sordid process, the legislative branch is not without shame either, because it too contributed to the decline of political institutionalism and constitutionalism in by its own lack of respect for parliamentary independence in Pakistani politics. It has been the bane of Pakistani political culture and practice that it has misplaced an undue premium on the importance of political personalities over political institutions. Pakistani , which champion the cause of in , do not follow democratic traditions within their own and thus, institute a cult of personalities that dominates the political debate in and moves Pakistani politics towards a self-defeating exercise in the settlement of political grudges.

Pakistani and their leaderships’ failure can be attributed to the fact that they were always willing to place the narrow political interests of the party and its hierarchy over the interests of the legislative branch and in this way turned the course of Pakistani politics away from institutional politics towards personal politics. Though the compliance of the legislative branch, in the dismantling of constitutionalism in , has been more of a reactive nature, it has sadly provided the excuses for its own diminishing of political independence through the acts of its own members, which sought to place political loyalties over constitutional responsibilities by condoning personal politics at the expense of institutional politics. The failure of the legislative branch in , along with the judiciary and the executive to safe-guard constitutionalism, offers a dismaying picture of a systematic constitutional failure in Pakistani politics and brings the discussion to the question of how to revive the spirit of constitutionalism in Pakistani politics.

The present crisis, strangely enough, also offers the best for a revival of constitutionalism in and perhaps, it offers the only ray of to restore the writ of constitutionalism in Pakistani politics. In more ways than one, the present crisis has helped to focus the attention of politics on the issue of constitutionalism and and in doing so has removed the political debate in from the cyclical arguments of liberal politics versus religious politics. Pakistani politics has been offered a rare opportunity in the present crisis in the sense that debate is purely based on the arguments and merits of constitutionalism and the writ of the and revolves singularly around the issues of constitutional . In doing so, the present crisis makes no allowance for a religious interpretation to the crisis and because of this, for the first time in a long while, the political debate in , on a critical issue facing the nation, is a purely secular debate.

It is for this reason that the religious alliance of in seems to be at a on how to milk this crisis and its issues for its own political mileage and because of this, the political space has opened up where constitutionally liberal political voices can articulate and shape the emerging nature of this debate in . The liberal constitutional voices in had missed the last chance to shape the constitutional debate and the result was that religious clergy had quite successfully defined the parameters of the debate and thus, had presented a completely alien definition of secular politics by identifying it with . The failure of the Pakistani liberal constitutionalists to counter this impression created a political windfall for the religious groups in since by the virtue of their definition of the debate, they ended up influencing Pakistani politics towards a dogmatic political inflexibility based upon a minimalist interpretation about the role of in politics.

Another advantage, which this crisis and its issues have presented, is that the major are also not in the vanguard of this debate and though they have been given an opportunity to agitate against the in Islamabad, the issues of contention are not political as much as they are legal. It is due to this reason that the most vocal interest group that is in the forefront of the debate is the community of lawyers and it is the legal community of that is influencing and charting the nature and the direction of the present constitutional debate in . The legislative branch is playing a second fiddle to the judicial branch, in this crisis, because the core issue at the heart of the crisis is not one of about the supremacy of the parliament, but about the supremacy of the in and within that argument, about who has the right to interpret the in ; the executive or the judicial branch of the .

The legal community in seems to be united in its task to define the nature of the debate on the issue of constitutionalism by not arguing the charges in the presidential reference filed against the Chief of , but in arguing the legality of the presidential reference itself. It is a defining moment in the history of ; because through this crisis an opportunity has been presented to define the very nature of constitutionalism in and just like Marbury v. Madison (1803) established the principle of constitutional review by which the United States Supreme Court gave itself the right to adjudicate an independent constitutional role, the legal community hopes to take advantage of this crisis to firmly establish the legal precedent that it and the judiciary, and not the executive, will define the nature and scope of constitutionalism in by carving an independent constitutional role for itself away from the influence of the executive branch.

If the legal community in is successful in presenting its case and can create an independent role for the judiciary and in the process, truly establish the independence of the judiciary in , it will have contributed greatly in reversing its own legal precedents that had provided the executive branch with constitutional protection for its extra-constitutional acts. The success of the judiciary and the legal profession in to define the nature of constitutionalism in Pakistani politics will not only end the influence of the executive branch in the matters of the judiciary but in doing so it will help to re-establish the idea of the separation of powers in Pakistani politics. An independently strong judiciary capable of constitutionally maintaining its own independence will also allow the legislative branch the constitutional breathing space to reassert itself in the politics of .

The reason being that the right to define the and its interpretation will be firmly placed in the hands of the judiciary and this way, a constitutionally legal mechanism would have been created that would hold the potential to make the executive accountable for its actions in Pakistani politics. The natural constitutional coda to an independently viable judiciary is that as the judiciary limits and even rolls back the power of the executive branch, it will automatically create the conditions that would see an increased role of the legislative branch in the politics of . This would be the most logical outcome of such a scenario, because in a constitutional arrangement of separation of powers, it is the legislative branch of the that is ultimately responsible for holding the executive branch accountable and not the judiciary.

Therefore, though the present crisis has not reached the proportions of a national constitutional crisis, it has ingredients of a constitutional crisis in the making because the issue at stake is not a judgment upon the role of a of the Supreme Court in , but a judgment on the role of itself in .