Independence of Judiciary: A Lost Cause?

Guest Post by Anam Jamali

Pakistan enjoys a history of judicial slavery and subordination – excuse me for the blunt and unparliamentary use of words as I understand having such opinion is an offense nowadays.

Symbolic of judicial politicization is Judge Roland Freisler, a Nazi German Judge, whose court provided protection and legal cover to Adolf Hitlers dictatorial regime. Whilst in Pakistan, the honour of setting such a trend rests with Justice Munir, for his verdict in the Moulvi Tamizuddin case [1], whereby he legitimized the then Governor General, Ghulam Mohammads illegal and unconstitutional dissolution of Pakistans Constituent Assembly, based on pure malafide and in retaliation to the Assemblys decision to curtail the powers of the office of Governor General. The genesis of his reasoning was based on the import of the “doctrine of necessity.

Ever since then, this bad precedent has been a burden that Pakistans judiciary has been carrying over its shoulders for over fifty years. Any attempts to disband these shackles of judicial subordination are viewed by the governments with much suspicion and penalized relentlessly/severely.

In essence, the concept of independence of judiciary stems from the doctrine of Separation of Powers. This trichotomy of powers gives institutional autonomy to each of the three state institutions and ensures that they exercise their powers within the defined ambit of the constitution so as to avoid any abuse of power.

There are two aspects to judicial independence; whereby the judiciary as guardian of the Constitution ensures that fundamental rights of citizens, as stipulated in the Constitution, are held paramount and where it serves as an impenetrable bulwark against the excessive assumption of power in the legislature or executive. These concepts are almost analogous to the notion of rule of law and most severely threaten to expose the government of the day. For the powers of judicial review, if exercised, allow the judiciary to probe into, question and even invalidate acts of the other two institutions (executive and legislature) that are held to be ultra vires their respective jurisdictions.

However, there is a mass misconception as to the integrity of the judiciary. The role of the judges must be analysed against the backdrop of the operational constraints and insecurities in which they work. The reasons for the judiciarys chequered history can be attributed in part to the system in which it operates, whereby the executive has much control over the judges appointments, salaries, security of tenure and powers of transfer and in part to frequent military takeovers in Pakistan. With every military takeover comes a reshuffling and restructuring of the judiciary where those defiant judges refusing to validate and legitimize the regime are made redundant. The vacuum is gladly filled in with puppet judiciary; the function of which is to rubber stamp actions of the de-facto government as legal and constitutional.

Though the Constitution of Pakistan does seek to provide security of tenure to the superior judiciary, as the draftsmen of the 1973 Constitution must have realized the need for the superior judiciary to be as little exposed to the executive as possible, so that they deal dauntlessly with sensitive state issues, yet the same protection is not sufficient and has been frequently manipulated by governments to suit their objectives.

Despite these multiple opposing factors, judges in the High Courts and Supreme Court have exercised, especially in recent years, some degree of judicial independence in handing down a number of cases against the government [2]. But keeping up with traditions; it was not long before their governments for fear of exposure, replaced these defiant judges just as the present government did on Nov, the 3rd.

With General Zia-ul-Haqs imposition of martial law, the constitutional provision requiring the judges to be only removed by the Supreme Judicial Council [3], consisting of the chief justice, two ranking judges of the apex court and two provincial chief justices, was revoked in June 1979. The subsequent 1981 Interim Constitution required all Supreme Court, High Court and Shariah Court judges to take a new oath of loyalty to the martial law, and granted immunity to all laws enacted pursuant to martial law, from judicial review. Following the same, the Supreme Court Chief Justice along with several brother judges was replaced.

Additionally, under the regime of General Zia, military courts were set up to court-martial civilians for disobedience of martial law regulations, without recourse to appeal in civilian courts, even after the abolishment of these military courts in 1985. It seems as if Pakistan stands at the same junction once again, with the amendments under the Army Act 1952, handing over, from civilian courts to military courts, the jurisdiction of trial and punishment of civilians guilty of offending the sanctity of the institution of armed forces.

As surprising as it is, the civilian rule has been no different from the military regimes, with regards the treatment meted out to judiciary. The executive has always managed to exploit judiciary by exercising undue political pressure upon judges to the point where they find a judge who can please them with a tailor-made verdict.

In 1997, the strained relationship between Prime Minister Nawaz Sharif and Chief Justice Sajjad Ali Shah, over the issue of appointment of judges was followed by the Supreme Court bringing charges against Nawaz Sharif for contempt of court. Before the Supreme Court could pass its verdict, which may well have disqualified the Prime Minister from office, the move was pre-empted and instead the Chief Justice of the Supreme Court was forced out of his office.

Not surprisingly, the next military regime proved to be no different when General Musharraf promulgated the Provisional Constitutional Order (PCO) in 1999, requiring judges of the superior courts to take an oath of allegiance to his military regime. This resulted in the Supreme Court losing six of its most esteemed and reputable judges, including the then Chief Justice, Justice Saiduzzaman Siddiqui.

Having said that, I cannot resist the observation that many a times the superior judiciary in Pakistan has also fallen short of the expectations of the masses in failing to uphold the principle of supremacy of law by unnecessarily and repeatedly invoking the doctrine of necessity; often applying it out of proportions, such as in the Zafar Ali Shah [4] case. To this extent the superior judiciary itself is also responsible for its flawed record.

However, eight years down the line, a second PCO was promulgated; this time the sole target of assault was the judiciary being punished for acts of judicial activism allegedly working at cross purposes with the government functionaries. The loss being much greater and irreparable in nature this time; with about sixty judges from the superior courts declining to validate another coup and the suspension of the 1973 Constitution, following the orders of the seven-member bench of the Supreme Court which blocked the way for the PCO before it was even proclaimed. Their stance being, that such an act would stand in contravention of their constitutional oath to “preserve, protect and defend the Constitution of the Islamic Republic of Pakistan, appreciating Article 6 of the Constitution which states that anybody who tries to abrogate the constitution by force of arms, or otherwise, or assists in its abrogation, commits high treason.

An impasse has thus been reached, whereby the government refuses to allow these judges to perform their duties, while the legal fraternity continues to impress that these judges have not ceased to hold office. Ironically while the judiciary is accused of having sheltered terrorists, the government itself admitted on state television of having released 29 militants (convicted by Anti-Terrorism Courts) in exchange for 213 kidnapped troops whereas the Supreme Court does not even have a single militants release to its record. Hence, the act of deposing judges, the lawyers believe, is a gross breach of the doctrine of separation of powers and the rule of law, and an encroachment upon judicial autonomy.

In an interview with Newsline, eminent barrister and advocate of the Supreme Court, Qazi Faez Isa puts it this way; “a judge continues in his office until he retires, expires or is removed, whereby the mechanism for removal of a judge lies in the formation of the Supreme Judicial Council, which gives them a right to fair hearing and then pronounces whether they are found guilty of the alleged charges or otherwise.

Till then, the judiciary in Pakistan rests in an air of uncertainty, between lawyers, deposed judges [5], installed judges, civil society members and political parties. While ironically most political leaders vehemently advocate an independent judiciary, there is a marked reluctance to pressurize the government for the reinstatement of these deposed honest and upright judges, as if this “independent judiciary is going to be showered from the heavens above. Hence for now, the pens have been put to halt, voices silenced, movement hampered, and the entire judicial system paralysed.

All of this seems to be a repetition of history but what is really different this time, is how the silence of the judiciary has echoed in the form of seismic tremours within and outside of Pakistan causing the very façade of the present regime to come crumbling down to pieces.

Now the question is whether this judicial resistance will bear fruit and result in the greater common good of the people to prevail or is the struggle for an independent judiciary a lost cause?

References:
[1] Federation of Pakistan v. Moulvi Tamizuddin Khan; PLD 1955 FC 240.
[2] Pakistan Steel Mills Privatization Case; Hasba Bill Case; Missing Persons Case; May 12 Petition.
[3] Article 209 of the Constitution of Islamic Republic of Pakistan (1973).
[4] Zafar Ali Shah v. General Pervez Musharraf; PLD 2000 SC 869.
[5] By virtue of Oath of Office (Judges) Order, 2007.