Has the Judicial System Legitimized Undemocratic Systems in the Past?
Introduction – Democracy and the Rule of Law
Owing to constant unconstitutional behaviors in the past, Pakistan has remained a weak democratic state and democracy has become a mere slogan.
Democracy is a universally recognized ideal form of government. The Universal Declaration on Democracy (UDOD) necessitates judicial institutions under its principle 17 to uplift the judicial process, redress injustices and provide access to justice for all under the due process of law. The Declaration recognizes the impartiality and independence of the judicial mechanism as a guarantor of the rule of law. The rule of law necessitates a separation of powers, an independent, just and impartial legal system and fundamental rights as the property of an ideal and liberal Constitution to strengthen democracy.
Democracy in the Western world is a liberal democracy, contrary to the biased and ignored democracies of the third world and developing countries. Pakistan is a democratic society, however, it is wrapped in an undemocratic state. After 7 decades of independence and following three Constitutions (1956, 1962 and 1973) it still leaves a lot to be desired in becoming a democratic state. Pakistan identifies the principle of judicial independence, but has unfortunately fallen prey to unconstitutionalism and dictatorships in the past.
Since 1947, Pakistan has experienced several changes in government, alternating between civilian and military rule. Such alterations have shackled our judicial structure and curtailed the independence of judiciary – which is a prerequisite for the survival of democracy – resulting in an evasive rule of law. Even though the courts have proclaimed themselves as guardians of the Constitution and guarantors of the fundamental rights of people, the judiciary in upholding the rule of law has indeed struggled to do its best as an independent institution [PLD 2003 S.C. 74]. Incidentally, the judicial system has also acted partially to facilitate political leaders, depending on the prevalent political, economic and social circumstances in the country.
Issues Pertaining To The Impartiality Of Judicial System
The judiciary has acted both impartially and with bias, depending on the condition of democracy in Pakistan. Even though it has played a significant role in struggling for a strong democracy and the rule of law, there have been dramatic changes in its impartiality depending on the political and military ordeals in the country. Questions therefore arise as to what the factors are which impede the judiciary to play an independent role and whether courts can sustain an impartial and just legal system even in undemocratic conditions.
It is pertinent to mention here that Pakistani democracy has been directly and indirectly affected by military dictators as well the irrational and irresponsible behavior of political parties wobbling the rule of law. Undemocratic circumstances can certainly make the judicial institution vulnerable, such as a Provisional Constitution Order providing that the Supreme Court or High Court or any other court shall not have the power to make any order against the Chief Executive or any person exercising powers, authority or jurisdiction. This requires examining as to whether such intrusions are due to loopholes within the system; why amendments in the Constitution are allowed to facilitate the ruling party or military dictators; whether democracy can be strengthened by impeding such abrogation of the Constitution; and whether there is any provision in the Constitution that can control such amendments and cause the judiciary to not uphold such derogation to justify an undemocratic takeover.
This paper argues that even though the rule of law can remain sustainable in undemocratic situations, it threatens an impartial and just legal system and affects the independence and impartiality of the judiciary. Nevertheless, there also exist cases wherein the judicial institution has remained strong even when it has felt threatened.
Constitution Advocating Independence Of Judiciary
Pakistan’s Objective Resolution, the three Constitutions and the Preamble to the Constitution, provide for the independence of judiciary. The Constitution strengthens the roots of the judiciary by architecting an independent judicial structure. Our courts are also the creators of our Constitution but have nevertheless been suppressed by both political and undemocratic circumstances. The Constitution promotes and embodies in its Preamble the cardinal principles of democracy and rule of law that mature in the presence of other sustaining elements in a civil society, such as freedom, equality, tolerance and social justice, as also enunciated by Islam. The Pakistani Constitution ensures structural independence of the judiciary by asserting the composition of superior courts, the qualification, eligibility, remuneration, transfers and appointment of judges, tenured by the President of Pakistan in consultation with the Chief Justice, etc. However, the presence of provisions like 203C in the Constitution, inserted by a military dictator granting sole power to the President for the appointment of judges to the Federal Shariat Court, appears to threaten the independence of judiciary.
The judiciary is the third organ of the state. The Constitution, through which judges derive their decision-making powers, has been abrogated and suspended many times in support of undemocratic takeovers. Such abrogation has not only resulted in the cessation of the judicial system, it has also threatened the foundation and structure of judicial independence by justifying controversial constitutional amendments only to promote leaders either forcefully or by nepotism.
According to the author of American Constitutional Law (3rd Edition, 2002), “Substantive democracy is based on the separation of powers.” The Pakistani Constitution strengthens the independence of judiciary by recognizing the principle of separation of powers as the backbone of the constitutional system and a fundamental notion of access to justice. Articles 175 and 203 emphasize that the judiciary, including the lower judiciary, shall be separate from the executive. Justice Saleem Akhtar in Sharaf Faridi case [PLD 1989 Karachi 404] observed the separation of judiciary as a cornerstone of the independence of judiciary and held that unless the judiciary was independent, the fundamental right of access to justice could not be guaranteed. However, the courts by adopting the doctrine of necessity have often neglected this important principle of separation of powers.
In Pakistan, unfortunately, elected governments as well as usurpers of power while exercising their power, have ignored constitutional limits, deprived people of their basic rights and freedoms, restrained the judiciary and in the process forced the judiciary to give decisions that could never be said to be impartial. In an undemocratic state, judges have even been retired by force before tenure or detained and dismissed. At times, the judiciary also seems to have played an active role in endorsing undemocratic conditions. The question therefore arises as to how judges can be independent if they willingly or reluctantly facilitate military rulers and civilian dictators.
Pakistan’s Impartial and Just Legal System Amid an Undemocratic System
Predominantly, Pakistan has been prone to an undemocratic setup by constant coups and interventions. These institutional interventions have caused the judiciary to suffer a lot. The undemocratic dictators stapled the wings of the judiciary by curbing its jurisdiction, battered the independence of judiciary by the illogical amputation of independent judges, and ruined judicial pride by openly obstructing the proceedings of the court. Such undemocratic systems in the process of dealing with the judiciary followed the path of their predecessors and always subjugated the judiciary rigorously under martial law. However, cases exist wherein the judiciary has been impartial and has acted as a channel in the restoration of democracy.
The first constitutional democratic mishap in the history of Pakistan that derailed the legal system was in the case of Maulvi Tamizzudin [PLD 1955 Sindh 96]. An appeal was filed by the Federation of Pakistan before the Federal Court which declared that, “…which otherwise is not lawful, necessity makes lawful.” This historic decision was a step towards plaguing our Constitution and political system and the so-called doctrine of necessity was also followed by subsequent courts to justify military coups.
In 1958, in the cases of Dosso [PLD 1958 S.C. 533] and Mehdi Ali Khan [PLD 1959 S.C. 387], courts followed the theory of Hans Kelsen and unfairly upheld the concept of necessity. Rule of law was decimated when the principle from this case was later followed by the Supreme Court in the case of Mian Iftikharruddin [PLD 1961 SC 585] which held that martial law regulations had excluded the jurisdiction of the courts with respect to the function of the central government.
However, in the case of Fazlul Quader Chaudhary [PLD 1963 SC 486] the court acted independently against martial law and successfully secured the Constitution by holding that if the Constitution was altered at whim to extend the wishes of certain persons, it would clearly be an erosion of law in which case the superior courts would have to show resistance and defend the Constitution.
Again, in the historic case of Asma Jillani [PLD 1972 S.C. 139], the court impartially upheld the rule of law by deciding that Ayub Khan had no authority to hand over power to anybody and declaring the martial law imposed by Yahya Khan to be null and void, while also announcing the principle laid down in Dosso to be null and void. This enabled the High Court to punish for contempt a senior army officer for disobedience of its orders on the principle that no one was above the law [Hashmat Ali vs. Col. Muhammad Shafi Durrani – Writ Petition No.87/1969 decided on 07/03/1972].
Dr Pervaiz Hassan rightly pointed out that the judiciary in Pakistan adapted to prevailing political circumstances and in the process justified and legitimized each coup and intervention despite there being clear and specific constitutional provisions regarding high treason for abrogating or subverting the Constitution. For instance, only five years after the Asma Jillani case, the Supreme Court took a purely political decision in the case of Begum Nusrat Bhutto [PLD 1977 S.C. 657] and validated the martial law of July 1977 by Zia on the basis of the doctrine of state necessity. The court subjectively justified the abeyance of certain parts of the Constitution to make way for military rule.
Meanwhile, the fundamental principle of the independence of judiciary was clearly recognized in the landmark judgment of Sharaf Faridi’s case [PLD 1989 Kar. 404]. The court emphasized that the separation of judiciary from the executive was essential for its independence.
The Supreme Court used the power of judicial review in the Haji Saifullah case [PLD 1989 SC 166] which challenged the dissolution of the National Assembly of Pakistan ordered by General Zia-ul-Haq on May 29, 1988, in exercise of the enhanced powers conferred on the President as the price for lifting martial law and reviving the Constitution under the newly-added clause(b) of Article 58(2). The Supreme Court decided that the discretion conferred on the President to dissolve the National Assembly was justifiable and also agreed with the High Court that the said discretion had not been exercised legally. The court upheld the petition (that the President had unconstitutionally exercised his powers under article 58(2)(b)) but denied relief (did not restore the Assembly).
Nevertheless, the court in the case of Asad Ali [PLD 1998 S.C. 161] strongly supported the rule of law by declaring that the right of access to impartial and independent courts was a fundamental right of every citizen, and any deviation from the method prescribed under the Constitution for the appointment to the office of Chief Justice of Pakistan would give rise to an infringement of the right of a citizen to have free, fair and equal access to an independent and impartial court.
In addition to this, in the case of Syed Iqbal Haider [1998 SCMR 179] the court impartially protected the Constitution by directing that the order passed by the bench presided over by the (restrained) Chief Justice on suspension of the Constitution (Thirteenth Amendment) Act, 1997 would not be given effect.
The Supreme Court was again called upon to deal with a military intervention when, on October 12, 1998, General Musharaf took over as Chief Executive, declared an emergency and dismissed the civilian government while dissolving the Parliament and Provincial Assemblies. The President issued a Provisional Constitutional Order (PCO) to provide a temporary governing framework. Judges were forced to take oath of office under the PCO. Supreme Court judges posed defiance to this act. Six out of a total of thirteen judges of the Supreme Court refused to take oath and resigned from the bench. The rest of the judicial system had, in essence, granted almost unlimited powers to the military regime.
The case of Zafar Ali Shah [PLD 2000 S.C.869] justified Musharraf’s takeover on the principle of doctrine of state necessity and also allowed him to alter the Constitution without the approval of Parliament.
The state of emergency declared on November 3, 2007 also targeted the independence of judiciary, especially when Musharraf illegally removed and detained the then Chief Justice [PLD 2007 SC 578].
In the Pakistan Lawyers Forum case [PLD 2005 SC 719], the Supreme Court instinctively validated both the Seventeenth Amendment and Musharraf’s holding of office of both Chief of Army Staff and President, based on an extension of the doctrine of state necessity. In legitimizing the power of the military and the executive over Parliament, this case further strengthened the popular perception of the subservience of the Supreme Court to the military regime. Here, it can be safely deduced that the role of the judicial system did not appear to be in favor of the Constitution and democracy.
The rule of law during Musharraf’s reign had gotten victimized by politics again. Justice Dogar, who was appointed the next Chief Justice by the General, started giving political decisions according to the will of the government. Although the rule of law had been maintained in some of the decisions, in cases where the government was involved, decisions did not seem impartial, fair or constitutional. For instance, Chief Justice Dogar undermined the impartiality of judges by unlawfully taking up and dismissing petitions filed by Justice (retired) Wajihuddin Ahmad calling into question the eligibility of Musharraf to contest the election for the office of President. He unfairly took up the cases of Tikka Iqbal [PLD 2008 S.C. 6] and Watan Party [PLD 2008 S.C.178] and decided the same on the principle of salus populi suprema lex and granted relief which was not even prayed by the petitioner.
After the reinstatement of the deposed Chief Justice, the Supreme Court again appeared to start giving impartial decisions [2009 PLD 879] by declaring the judgments in Tikka and Watan Party to be null and void. The court held that the amendments purportedly made by General Musharraf from 3rd November, 2007 till 15th December, 2007 (both days inclusive) were neither made by an authority mentioned in the Constitution nor were made following the procedure prescribed in the Constitution and were, therefore, unconstitutional, illegal and void ab initio.
It is clear from the above case-law that judicial impartiality and independence has always been targeted by coups to legitimize their interventions. However, judges today seem to value the principle of an independent judiciary as a prerequisite for the continued existence of democracy, as is evident from the many cases where courts have aimed to maintain the rule of law by giving fair and impartial decisions. However, owing to a weak political and internal management structure, democracy in Pakistan remains a mirage.
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 PLD 1973 SC 49; State v. Zia ur Rehman
 Pakistan Constitution 1973 under Article 2A, 177, 179, 180,181,182,193, 195,196,197,200
 Article 203C under Pakistan Constitution provides for the Federal Shariat Court consisting of the Chief Justice and seven other judges to be appointed by the President.
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