Role of Judiciary in Constitution Making in Pakistan

Keep writing Ghazia..it is always interesting to read something researched about Pakistan. A few simple comments about Pakistans legal/political system:

1) Firstly in democracies there is usually a concept of separation of powers..for much of pakistans existence and to a lesser extent now..that separation has not existed practically..the now maligned District management Group wielded executive and judicial powers over districts ( as i would imagine their counterparts in India still do)..conversely there have been several occassions during martial laws that Chief Justice of the SC and HC have taken over executive positions in lieu of an absent executive

2)Administratively lower courts were in reality accountable to the Executive and not superior courts.

3) The writ of the court has not extended (for most of Pakistans existence) to FATA, the Northern Areas and much of Baluchistan..if you were to look at that in geographical terms those areas combined comprise almost half of Pakistans overall area.

4) Even when dealing with the Supreme Court and High Courts it is essentially the federal executive which exercises real power over them..with regard to the elevation of judges. and other matetrs..many of those curbs were introduced in the modern constitution by ZAB as a means of curbing challenges to his authority.

5) While the above comments sound harsh there have been a few cases where the courts have openly defied a sitting government ..surprisingly as the system is quite skewered in favour of a sitting federal gov..a few examples are:

a) the ruling against martial law in karachi and lahore in 1977 during the PNA PPP confrontation

b) the Sindh High Courts ruling against the dismissal of Khawaja Nazimuddins dismissal

c) If the Supreme Court had been allowed to fairly rule on ZABs execution it goes without saying they would have ruled against it..the government used its full power to remove judges who would have voted against the execution

d)Junejos gov would have been restored agai if the Army had not warned the SC against so

e) The Judges seniority case in the mid 1990`s while landmark and now ignored by the government it was unique in that it went against a sitting gov

f) The Sajjad Ali case has probably been discussed

g) Recently during Shahbaz Sharifs attempted return the courts reaffirmed his right to return..

To summarise..the legal system is especially twisted in a way where it has the pretende of a judiciary which in reality lacks much the authority of a real judiciary..despite this the courts have shown some backbone on occassion..yet the majority of the time it sides with the power that effectively wields executive authority (the more power the more it sides)...in the times when it has defied a sitting gov..there has been no respect for the rule of law..and as such its authority remained unenforceable..this reality is reflected by the general publics attitude towards legal cases. I am sure if research was done..it would show most people go to appeal ..because they doubt the impartiality of judges.

Re: # 12
I wonder why the list is so short. Had I been in your shoes. I would have initially taken up Maulana Adul Sattar Khan Niazi`s case(1953), Munir Commission Report on Qadiuani Movement violence, Usif Patel v. Crown (1954), Governor General`s Reference (1955), and later Benazir Bhutto v. Federation of Pakistan (1988), prior to Zafar Ali Shah, Liaqat Baluch Case (1999), the list can never be exhaustive.

As for the views posted and your absorption, yes, they are indeed providing rich material to your approach, rather concretizing it.

Keep it up Ghazia:) and GOOD LUCK on your project.

Re: # 13

Every representative democracy is founded on the `will` of `the people`. Can we disagree with this proposition? The repositry of the will is not just the legislature, but efectively the courts too find the moral sanctions as the only force available for the enforcement of their judgements. Constitutional provisions not withtanding. This is true for every democratic system.

The courts no doubt are a creature of the constitution, and as such interpret the constitution while doing so, it is the court who finally says what the constitution is?. Ref: Benazir Bhutto v. Federation of Pakistan (PLD 1988 SC 416)

How would this jurisdiction in the context of democratic or non-democratic government be phrased.

While insistence on limiting the role of courts to that of mere interpretator, is undeniably the hall mark of many legal systems. It cannot however, be denied, the quest for an effective judicially acive courts is in line with the post modern jurisprudence, and judicial philosophy.

When we say `government`. What does the term construe? It should in my view not be equated in the conservative context, of the traditional meaning assigned to it.

Class Interest Litigation, or PIL is one form of enforcing fundametally established principles of law. We certainly cannot equate such enforcement with taking over the governmental or legislative functions by the courts. PIL is part of our Constitution through Article 184 (3), but it could only survive a decade, and died in its infancy. In india, the Supreme Court sou moto assumed the juisdiction, and today the courts ther are playing a much healthier positive and constructive role in hormonizing the sociatal frictions.

Hasan siddiqi, this is meant only as an argument. I respect your views and find substance in them. The questions arising out of the statement made by Ghazia Aslam, have only been posed, again not by any disrespect to you.

OK I understand the reasons. I still feel uncomfortable because it puts the country`s name in a negative light.

I think the Judiciary should be the interpretor of the Constitution, not the amendor or maker of the constitution. Amendments should be left to the National Assembly. However that is really idealistic of me and i know there have been many instances to the contrary.

Good luck with your paper. This is a very interesting topic and i hope to find enough time to study it more in other publications.

Re: # 13

I did not mean to say that Pakistan should not be a democracy. I meant more in a positive rather than normative way i.e. Pakistan`s form of government IS (not that it should be) non-democratic rather than democratic. I make this assumption only for the sake of analysis. I think this assumption is justified because:

Pakistan has had military rule for more than half of its life.
None of the democratically elected assemblies have been able to complete their term.
There is historically documented evidence to suggest that even during democratically elected assemblies, the rule (decision making processes etc) has not been truly democratic.

``Instead of analyzing the role of judiciary in Pakistan as democracy, one should attempt to look for the role of judiciary in Pakistan as non-democratic government.``

Why is that? I don`t see how that would help. Pakistan was meant to be a democracy and it should remain a democracy. So why on earth would you want to analyze the role of Judiciary in Pakistan as an institution of a non-democratic government?

Please explain this in depth.

Thanks.

Thanks a lot for a number of interesting comments and criticisms. EinZeitgest, your suggestion of studying the form of government (Parliamentary or Presidential) system prior to analyzing the role of judiciary in that form of government is well taken. However, I would like to take it to an even more general level. (Comparison at more general level was also implied by insaanity). This is just an idea... and there might be holes in it which I am trying to detect through this debate.

Instead of analyzing the role of judiciary in Pakistan as democracy, one should attempt to look for the role of judiciary in Pakistan as non-democratic government. In a non-democratic government the power resides with specific persons and not with the institutions (legislation or constitutions) and the dictator is not going to last forever. Since all the actors in the society/political arena know that, no political actor would want to antagonize any potential person (or group of persons) who may hold dictatorial power in the future. And of course, each actor is trying to maximize their payoffs in this time period and the next. Can one look at Judiciary as one of those actors? The first question in order to address that is what is judiciary trying to maximize? Other than salaries of judges, one obvious thing is support -- and the power to be able to intervene/affect politics (and its own status) in future. (This itself is a good question to ask-- what have been the incentives of Pakistan`s judiciary.). In this framework, one needs to look at where does the support or authority of judiciary in Pakistan lie? Public sphere/public support? Executive? Constitution? political parties? civil society or intellectuals?

In order to analyze such a role, the main source of data can come from jurisprudence of the nine main cases that have addressed different constitutional questions in different and the political environment surrounding these cases. These cases are 1) Tamizzudin 2) Dosso 3) Asma Jilani 4) Begam Nusrat Bhutto (1977) 5) Muhammad of Saifullah Khan (1989) 6) Tariq Rahim (1992) 7) Nawaz Sharif (1993) 8) Benazir Bhutto (1997) 9) Zafar Ali Shah. Right now, what I have in mind is that I will see if the questions posed to courts were legal or political and was the court ruling (whether the question was legal or political) legal or political. Of course, the distinction between legal and political arenas is very difficult to make, especially in the case of court rulings but I can attempt to do that. The answers to these questions can shed light on who is favored by courts and in what period.

I think that this approach will take into account the comments made by HP and Hassansiddique as well. HP mentioned military as being the only pressure group, my quest would be to document the evidences and basis of that opinion. And to see if other pressure groups (as mentioned by HP) such as ``political parties, lawyers, bars association and other activists`` and general population (as HP implied that ``resentment in general population`` may be one concern, correct me if I am wrong) exerted any influence on court rulings. The answer to these questions will hopefully provide `some` explanation for some questions posed in the original articles.

Support maximization theory is no doubt applicable to all the forms of government. However, the sources of support for judiciary and dynamics of political activity will be different in a non-democratic form of government (or even in different forms of democracy. One may even surmise that these factors would be unique to every society). These questions, as pointed out by insaanity, are universal and not just specific to Pakistan.

Above is sort of a research proposal for a short paper that I am supposed to finish by the end of this month (!) but is a part of larger research project. I would really appreciate any comments on the theory, methodology, or generally if it raises any questions. Data is one concern since there are not a lot of good analytical books written on these cases before. So if you have any references that might help the research i would really appreciate it.

Acknowledgements: 1) The idea that the role of judiciary in Pakistan should be analyzed by assuming Pakistan as a non-democratic government rather than a democratic form of government was given by Professor Tullock. I elaborated further on it.

2) The list of nine cases was put together with the suggestions of a couple of distinguished lawyers and law faculty in LUMS.

``I am undertaking an `academic` exercise, not an argumentative one.``

Interesting... on an argumentative website you are performing an academic exercise ... and are sensitive to criticism.

``Being an aspiring academic at a very early stage, I would definitely avoid any sweeping statement till I have formed an opinion on any subject. ``

All I see is opinion...

So what now... we have a whole posse..

Somebody please check for multinics here...

I do not know enough about Pakistani legal and constitutional history to answer what for me is the most important question posited by Ghazia; i.e. is the judiciary an agent to legitimize the executive and intervenes with that particular objective, or is it an avenue for civil society to participate in the process.

This query is not of relevance to just Pakistan, but applies to old well established legal systems elsewhere. For example, if a Republican executive, aided by a Republican majority in the legislature, manages to dominate the Supreme Court nomination process then the Supreme court would reflect the ideological frame of the current Republican govt. There is no doubt that such a Supreme Court will then try and legitimize the agenda of the current executive on issues like abortion, separation of religion from State and gay marriage.

However, the added quandry for Pakistan is the lack of electoral democracy (or the domination of such a process by the military establishment). An elected and frequently changing legislature will act as a check on judicial tyranny. Thus, one hopes that even a highly conservative Supreme court bench in the US will not be able to do much if the Democrats get their act together come next elections. At the same time, the judiciary will provide a check on legislative tyranny through public litigation. Take the case in India where the Gujarat government was forced to accede judicial powers despite the best attempts of the Gujarat State Govt and legislature and case against the accused in the Gujarat riots taken to Mumbai High Court instead of being carried on in Ahemedabad.

The role of the judiciary in Pakistan cannot be seen in isolation from regular interventions by a venal military establishment in the public life of Pakistan. Cowasjee has written extensively on this subject in his articles in the Dawn and they are worth revisiting.

Ghazia,
Your article as I had pointed out earlier, is indeed, breath of fresh air. We must all remember, that any evolution and progress is only posible through academic dicussions. You have entered an area, which has not been tread upon at all. As the comments keep coming in, one finds that individual instances are once again becoming the topic. Do correct me if I am wrong, it is not about individuals and personalities. The time now is address the issues, one critical of all, is the role of the courts, which you have raised.

We have to keep this going, and not get bogged down in trivialties.

And as for 1999 events and the courts. I would be educated, if some one could give one, simply one example besides the Case of Fiji, where the courts have not given legal cover to a successful coup. The reason, WHY? is available in Madzimbamuto v. Lardner-Burke (1969) AC 1 645.

One more reminder, what about Dosso`s Case?, and the ensuing sequence of judgments. For that matter, even Asma Jilani`s case was decided after the fall of Dacca, with no military government in power in 1972. So, why isolate Zafar Ali Shah`s Case?

Ghazia,

I don`t see a logical coherence in this piece.

Methinks you`ll be stuck in that ambitious PhD project for a very long time.

First of all, keep writing Ghazia...we need more people raising questions like these.

Judicial reform is one of the most pressing needs in Pakistan right now. I think that the majority of Pakistanis have lost faith in the law and order system and basically a ``might is right`` system of justice prevails.

For example, I don`t think it was constitutional to overthrow Nawaz Sharif - sure he was corrupt and was looting the country - but the army was CONSTITUTIONALLY wrong. So who has the power? It seems the GHQ is above the law in Pakistan. Is that correct? No. Do we have a choice? Apparently not.

In addition - the Supreme Court affirmed the actions of the military when Sharif was overthrown - further proving that the SC can succumb to the pressures of the military even if it does things against the constitution.

The role of Judiciary in Pakistan needs to be what it is for most developed nations in the world - that of a body which interprets laws and passes judgement. However, when we don`t have proper institutions working on those laws - it makes the judiciary quite worthless.

It would be interesting to see what happens in the wake of new passports being given to the Sharif family. What will be the ``judicial`` explanation for that? What was the judicial explanation for keeping him out in the first place?

The sad thing is - we don`t really have a choice. The military does unconstitutional things to rectify the actions of corrupt politicians - so what is really right - following the constitution or rectifying the actions no matter what the constitution says?

I believe now, that following the constitution is the most important and correct thing to do - provided we give justice to those who have been adversely affected by it.

Re: # 1

I did not say that Pakistan has seen the kind of constitutional cases that United States has. The only reason for mentioning US was that Pakistan in not the only country where courts are active in constitution making (state-structure defining) processes to make the point that theory has ignored a very vital role of courts. The word `pre-constitutional stage` is however vague (that I have realized as I read further). Where does that imply that the process has been the same??

I have not made any claim in this article except saying that the role of courts in Pakistan state structuring has not been defined by any theory. And that there are fundamental questions which have not been answered before.

And..it is not called name dropping it is called referencing to theories and ideas of authorities in that area, trusting that readers do have a knowledge of what has been going on in the field. Besides I am not here to prove anything to anyone. I am undertaking an `academic` exercise, not an argumentative one. Being an aspiring academic at a very early stage, I would definitely avoid any sweeping statement till I have formed an opinion on any subject.

It would have helped the debate if the author has put forward her own answers to the questions. All questions are important but the real test is in first finding out how mature Pakistani judiciary is before even discussing some fundamental issues. With the state of judiciary we have in Pakistan, I think some of Ghzia’s questions are premature. We first have to deal with the role of judiciary in Pakistan and in Ghazia’s words:
“Has judiciary primarily acted as an executive instrument assisting it to legitimize its rule and its role in state building has simply been an off shoot of that?”

This question is primarily political and the answer perhaps is also somewhere within the Pakistani political framework.

Pakistan judiciary is, I believe, still under the Law Ministry which means that its budgets and expenses are being managed by the Law ministry and perhaps even the chief Justice needs a Law Secretary’s sign off on CJ’s Travel vouchers and airlines fares.
The admin control of the Judiciary would certain make the judiciary part of and an extension of the executive.

Often some bureaucrats have ended up becoming Judges in the higher courts and sometime judges have taken up admin’s role in the law ministry.

This intermingling of Law enforcement to law elucidation functions makes judiciary appear to be more an off shoot of the executive rather than an independent institution. That is possibly the reason that the judiciary invariably ends up in deciding for the executive, when an intervention in constitutional-political disputes is warranted. The judiciary appears much more comfortable when it deals with interpretation of the law or the constitution when dealing with other disputes.

The 1973 constitution tried to address this question and attempted to provide for some independence and separation of roles for the judiciary but the exigencies of the terminally volatile political environments make it difficult for the executive to grant that independence to the Judiciary.

***

The judiciary itself has no inclination or should I say pressure on it to assert its independence. The Judiciary currently works with only one pressure group and that is the executive and it feels safe in aligning itself with the executive as there is practically no pressure on the judiciary from the groups outside of the executive such as the political parties, lawyers, bar associations and other activists that need judiciary’s intervention in interpreting the laws to their point of view.

Two notable incidents within the last ten years are worth bringing up in considering the Judiciary’s complete reliance on the Executive branch. I will take the second incident first. Musharaf had to go to the judiciary to seek legitimacy but the terms of reference did not call for granting the executive the right to amend the constitution. Reportedly, the judiciary was willing to grant the executive branch the legitimacy it sought but had no decision to allow the executive to amend the constitution. When a request was made to the court outside of the reference, the court was more than willing to accommodate the executive. The court’s attitude was that of a benevolent protector of the executive rather than of an interrogator of the executive’s constitutional ability to amend the constitution.

The Incidence before that was a watershed event in the Pakistan history. This incident alone showed the kind of frustration general public has with the one sided absolute patronage that Judiciary provides to some non political and constitution abusing elements in the Executive.

The ruling political party showed is frustration in an uncivilized way.
It was a bad representation of a legitimate grievance against the court. The court should never be acting on behalf of the rogue elements in the Executive behind the scenes. Its role must be transparent and it cannot intervene to help elements that seek to usurp power unconstitutionally. The supreme court of Pakistan allowed itself to be a part of illegitimate political partisanship and thus rendered itself open for political backlash.

We can debate that action but it certainly showed that the resentment against the court is growing rapidly in the general population and the Supreme Court should review its relations with the executive and especially with the rogue elements in the state structure.

Ghazia,
In my view, you have raised a question for a healthy debate. However, in the first instance any comparision of the U.S. Supreme Court and the Supreme Court of Pakistan (American judiciary and Pakistan`s judiciary) would not resolve the question you have posed here, though by all means, it would provide for an illuminating study.
Why, I say so, is primarily on account of the critical difference present beween the two systems. Constitution of Pakistan finds its roots in Analytical Law, while United States Constitution is founded on Normative Law or what is commonly called `the fundamentally established priciples of law`. By way of example, lets read Amendment I of the U.S. Constitution ``Feedom of religion, and the press, rights of assembly and petition: `Congress shall not make any lawrespecting an establishment of religion, or prohibiting the free exrcise thereof, or abridging the freedom of speech, or of the press, or right to the people to keep and bear Arms, shall not be infringed.```

In contrast Article 19 of the Constitution of pakistan lays down:` Freedom of Spech, etc. : Every citizen shall have the right to freedom of speechand expression, and there shall be freedom of the press, subject to any reasonable restrictions imposed by law in the interest of the glory of Islam or the integrity security or defence of Pakistan or any part thereof, friendy relations with foriegn states, public order, decency or morality, or in relation to contempt of court...`

Article 20 reads:`Freedom to profess religion and to mange religious instutions:-subject to law, public order and morality_-...`

Pakistan constitutional scheme has common law, institutional, and legal reasoning traditions
wher the courts cannot take upon themselves the jurisdiction, which you have quoted Marbury v. Madison (1803). In the paticular case, U.S. States Supreme Court assumed a jurisdiction which was not expressly provided for in the Constitution. In pakistan majority of the judemnets which may be in your mind, are mostly deciding the `the doctrine of state nessicity`. However Madzimbamotos` Case (1969) and most recently that Republic of Fiji v. N.S. Prasad (2001), and ofcourse from our own jurisdiction Asma Jilani`s Case (1972) can provide much better understanding on Han`s Kelsen`s theory.

The rulings on the rights of the citizenry, do read Shehla Zi`a (1994) case. It still remains to be enforced by the excutive. And, by the way that was the closest our apex court ever went towards judicial activism.

Religion as understood in American Constitutioanl Law would always be at odds with a theocratic constitutional scheme. Refer to Artice 2-A of Constitution of Pakistan.

I admit I have to agree with Mantolives when he refers to `Plessey Vs Ferguson`. Yes, there are too many dichotomies between the two systems to provide any answer to your quewstion