PAKISTAN: Invigorating courts 

Dear friends,

We wish to share with you the following article from Development & Cooperation written by Mr. Baseer Naveed, senior researcher of AHRC.
The complete article can be found at http://www.inwent.org/ez/articles/055269/index.en.shtml

Asian Human Rights Commission
Hong Kong

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An article from Development & Cooperation forwarded by the Asian Human Rights Commission

PAKISTAN: Invigorating courts

By Baseer Naveed

In Pakistan, the legal community is in open rebellion against military rule ever since the country’s authoritarian government suspended the Supreme Court’s chief justice in March. The judiciary, which for most of Pakistan’s history did little to restrain non-elected authorities, had recently become more assertive. So far, the government seems unable to rein in protests.

Military action against Iftikhar Chaudhry, the chief justice of Pakistan, has generated an unprecedented political crisis. In the past, the army and the judiciary had always been good friends, united in subverting democratic aspirations of the people. The judges normally acted as defenders of the armed forces, not of the rule of law. Only once did the Supreme Court call a military dictator a “usurper” – and that was in 1971, a year after the person in question had died and was thus safely out of the way.

Pakistan’s higher judiciary was never allowed to work independently. Its role is also diminished by the fact that it is overburdened. Today, there are more than 20,000 pending in the Supreme Court alone. Normally, it takes cases in the lower courts five to six years to be decided, appeals may drag on for up to 20 years. Moreover, Pakistan has a problematic dual legal system with a secular judiciary and an Islamic one. In cases of murder, rape and other awful crimes, Shariah courts often pass judgments that secular courts find difficult to revert.

For a long time, Pakistan’s secular judiciary looked like a dead and meaningless organisation. It was so impotent that military leaders did not even consider it whenever they were trimming down other institutions. Normally, the judicial “doctrine of necessity” allowed non-elected government forces to act as they pleased (see below).

Neither army nor bureaucracy ever really felt restrained by the nation’s constitution or other official laws. Justices who dared to oppose military or bureaucratic decision-making, were quickly transferred to other courts or lost their jobs entirely. In many instances, their family members were threatened.
Today, however, that kind of intimidation does not seem to work anymore. Pakistan is witnessing a broad-based popular movement for an independent judiciary and the rule of law. The situation is tense, and it is impossible to tell which forces will prevail. State-sponsored violence has erupted. On 12. May alone, for instance, 51 people were killed in Karachi, when police, army and the local administration cooperated in making a rally impossible.

The popular movement erupted with force in March, after President Pervez Musharraf, a military ruler since October 1999, suspended Chief Justice Chaudhry from office. The judge was summoned to Army House, he was manhandled there and detained for several hours. An interim chief justice was sworn in.
In the past, several judges had been personally humiliated by military leaders, but this time the action was seen as an affront towards the legal profession as a whole. A lawyers’ movement sprung up immediately, boycotting courts and staging rallies. This movement has since gained the support of various political parties and civil-society organisations.

Self-confident jurists
Indeed, Chaudhry was an unusual chief justice, who took some remarkable decisions. For instance, he formed a Human Rights Cell at the apex court. During his tenure, the Supreme Court ruled against high-ranking officers in cases dealing with the privatisation of government businesses or land grabbed by civil and military authorities. The higher judiciary, following the Indian example, had begun taking on cases of public interest litigation suo moto (Baxi, 2004). In other words, the justices started proceedings on their own when it was brought to their attention that state agencies had breached laws.

Most important, the Supreme Court began considering cases of “missing” persons. These people had been arrested by law-enforcement agencies, which denied knowledge of their whereabouts. The secret services in particular were uncomfortable with this kind of judicial interference.

Pakistan’s lawyers, on the other hand, appreciated the new trend. This was all the more so, after the Supreme Court had ruled on a matter that directly concerned them. The Court decided that, on the basis of the votes cast, Muneer Malik was the rightful president of the Supreme Bar Association, an influential body of jurists. After the election, Malik Quayyum, a retired judge with close ties to Musharraf, had unlawfully assumed that position with support from government lawyers. The Supreme Court thwarted this attempted inner-Bar coup, sending a clear message to government that the judiciary was making independent decisions.

The government is not accustomed to this kind of self-assured, independent action. When General Musharraf seized power in 1999, he had been able to stem inklings of judicial opposition comfortably. For instance, he introduced a “Provisional Constitution Order” (PCO) in January 2000. Putting the constitution of Pakistan in abeyance, he compelled judges of the higher judiciary to take oath under PCO. Many judges refused to take oath on the military- made PCO, and thus Musharraf could appoint a chief justice of his own choice. After these manoeuvres, the Supreme Court of Pakistan not only justified the military coup in 2000, it also granted Musharraf powers to amend the constitution – something the military command had not even asked for.

In Pakistan, the president appoints the judges of the High Courts and the Supreme Court after recommendation by the Supreme Judicial Council. Judges are thus appointed according to political needs, and in the past, they did not go against the executive powers.

Change, however, had been brewing up in the legal profession for a long time. There had been a positive movement among a new generation of judges who came after the movement of 1983 against the General Zia ul Haq. Many were directly or indirectly involved in the movement for the restoration of democracy (MRD) of 1983. Most of the judges of this generation were unhappy with the judges’ role in past periods of martial law. They had hoped that, in a democratic setting, the political parties would support judicial independence and supremacy. In the 1990s, when Pakistan was run by civilian governments, the judiciary tried to assert its constitutional role. However, the political parties in power curbed it in similar ways autocratic regimes had done before.

It is generally said that had General Musharraf dealt with the Supreme Court more quietly, the way earlier military rulers had done, there would have not been such a hue and cry. That notion is wrong. If one analyses the history of the judiciary, particularly in respect to martial law, it is clear that dissatisfaction had become rampant in the legal community, which finally wants to play its constitutional role.

Outlook
The recent movement is not about to halt. In spite of brutal repression, peaceful rallies and pickets are organised. The media and a number of political parties are supporting this new, secular opposition to the government. On the other side, the military is obviously considering steps against the media and political activities in general. Untypically, Musharraf’s rule had so far not gone along with harsh repression of the freedoms of speech and association per se. That may be about to change.

It seems likely that the government will keep control over the judiciary for some time. However, it should be very difficult to suppress the progressive spirit in the legal community. There are chances that a new political party will emerge. Some hope that Chaudhry will go into politics and become a strong leader. On the other hand, it is possible that the military government will provoke clashes and perhaps even blame neighbouring countries of manipulating the lawyers, only to impose an emergency or martial law.
While the country’s future is in the balance, it is obvious that the army will hardly stay in power should Coudhry be re-instated as chief justice. Though that does not seem likely right now, the army has never before looked as weak as it does today. Anything may happen.

Baseer Naveed
is a senior researcher at Asian Human Rights Commission, based in Hong Kong. He is dealing with South Asian affairs.
»» baseer@ahrchk.org

Reference:
Baxi, Upendra, 2004:
Liberation judiciary. Interview in D+C/E+C, Vol. 31, p. 326ff (Indiens Befreiungsjustiz, Interview in E+Z/D+C, Jg. 45, So. 326ff.)

 

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“Doctrine of necessity”

Since the creation of Pakistan, the army and the bureaucracy had a good friend in the judiciary. The latter repeatedly allowed the non-elected forces of the state to do as they pleased in the name of “saving the country”.

In 1954, just seven years after the creation of Pakistan, Governor-General Ghulam Mohammad dissolved the first Constitutional Assembly and the government of Prime Minister Khawja Nazim Uddin. This motion was challenged in the Sindh High Court, which held that the dissolution had been illegal and unconstitutional. On appeal, however, the Chief Court of Pakistan, which was later renamed Supreme Court, decided that the governor-general had acted correctly. Chief Justice Munir thus created the so-called “doctrine of necessity”.

It’s substance is the absurd idea that it is legally justified to abandon the constitution in order to preserve the country. According to this doctrine, the army can do no wrong, no matter how illegal or unconstitutional its actions may be. The doctrine was used several times to throw out an elected government and drop a constitution.

In 1958, General Ayub Khan imposed martial law, dissolving parliament and abrogating the constitution of 1956. His coup was challenged in the Supreme Court. After a briefing at the army’s general headquarters, the judges decided that the military was acting in accordance with the doctrine of necessity. The general ruled for nearly 11 years, during which all civil liberties were suspended.

In 1977 General Zia ul Haq dissolved parliament and abrogated the constitution of 1973. The chief justice toddled off to the headquarters before announcing the court’s judgment in favour of General Zia, and indeed even in front of him. This decision, of course, was based on the doctrine of necessity. The military enjoyed another 11 years of power undisturbed by the courts.

When deciding on the constitutionality of the military coup of 12. October 1999, the Supreme Court recurred once more to the doctrine of necessity. At the time, it even gave General Pervez Musharraf unlimited power to amend the constitution as he pleased. Some in Pakistan’s legal circles claim that this decision was literally written outside the court and handed to the judges to pronounce without them even having had time to read it properly. In any case, the regime had manipulated the composition of the Supreme Court beforehand. (BN)

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About AHRC: The Asian Human Rights Commission is a regional non-governmental organisation monitoring and lobbying human rights issues in Asia. The Hong Kong-based group was founded in 1984. The above statement has only been forwarded by the AHRC.

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