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History: Fixing the judiciary

by shock & awe methods

By Manzoor Ali Isran


IN the sordid history of Pakistan, it is unfortunate that politics has always taken front seat and featured in the functioning of the executive and judiciary. As a result, there has been total institutional breakdown, constitutional crisis and political chaos, bad governance and rampant corruption. Ruling military elite has created a political cartel in the shape of Muslim League-Q, consisting of divergent political groups and individuals, to serve as a façade of legitimacy.

The fate of this cartel depends on how much political and economic patronage military regime can afford to provide. Such a patronage has, over the years, given birth to a political system that is based on corruption and coercion. In fact, corruption is functioning as a lubricant to keep the system moving. For the survival of such a system, the regime needs a pliant judiciary, not the one headed by the likes of Chief Justice Iftikhar Mohammad Chaudhry. It is therefore in this context that every Bonapartist, whether military or civilian, has adopted the policy of “shock and awe” to fix and make judiciary subordinate to the executive.

The president‘s action to call and humiliate the Chief Justice of Pakistan on March 9 is being seen by most of the political analyst as part of the “shock and awe” policy hatched 53 year ago by some unscrupulous elements to sabotage the nascent judicial, constitutional and democratic structure of the country as these elements were afraid that if Pakistan became a democratic polity with political power concentrating in the hands of people, they would not be able to pursue their own petty interests.

Undoubtedly, suspension of the CJP has led to an unprecedented uproar and massive protests across the country. In every town and city, the legal community and the forces of civil society are up in arms over the issue, agitating against the Chief Justice’s suspension, calling it malaise and unconstitutional. There is little doubt that the legal community has demonstrated a rare show of unity in the history of Pakistan showing an unshakable commitment to defend the CJP and the independence of judiciary against any cavalier attempt to undermine its freedom and autonomy as enshrined in the Constitution under the ‘doctrine of separation of powers’.

The driving force behind this unity is the pro-poor stance of the CJP. He took decisions that provided justice and sense of empowerment to the marginalized sections of society, poor men, women and children against the brute force of the state. After watching some children shown with handcuffs on TV channels, he had immediately asked the senior civil judge of Hyderabad at midnight to go to the police station concerned and get them freed. It was he who provided justice to poor Munoo Bheel who was running form pillar to post knocking at doors of influential people for justice. The determination of the CJP not to surrender to the bullies of the military-led government has not only raised the honour, dignity and stature of the judiciary but also strengthened the forces of civil society who are struggling for the rule of law in the country.

Apart from that, he had many laurels to his credit. The most striking is the clearance of the huge backlog of cases in the Supreme Court. When he took over, there were a total of 25,808 cases, appeals and petitions, pending before the Supreme Court. Later, the figure went up to the 38,139 cases. The chief justice decided over 20,000 cases a year and reduced the backlog to 10,389. He is the only judge in the country who took 6,000 suo motu notices on issues relating to human rights abuses.

His landmark decisions or the cases he took up include hearing petitions against rising oil and pharmaceutical prices involving the interests of large multinationals, preventing public parks from being converted into exclusive (mini) golf clubs or commercial complexes, strictly enforcing building regulations and decreeing the demolition of elitist encroachments on public lands, prohibiting the cutting of forests in the construction of an elitist township known as New Murree near Islamabad, instituting inquiries into disappearances, providing relief to rape victims, banning forced marriages and the exchange of girls and women to settle disputes according to local customs. His memorable judgement was reversing the privatisation of Pakistan Steel Mills. He gave landmark verdicts on Basant and wedding feasts. These were the decisions that irked the government and led it to take a strange decision of making the CJP ‘non-functional’.

It is ironic that the suspension and manhandling of the Chief Justice at the hands of the security forces has come at a time when the country is desperately trying to improve its image abroad amid allegations that Pakistan has virtually become an incubator of producing jihadis and where women are frequently traumatised, civil liberties to common people are denied or abused by the security forces in the name of fighting against the extremism. The other allegations include the rise of fundamentalism and creeping Talibanisation, coupled with sectarian divide, alleged disappearances of dissidents at the hands of intelligence agencies, poor governance and rampant corruption and finally attacks on the press, the fourth pillar of the state. The attack on Geo TV channel is a glaring example of the state’s intolerance of objective coverage of events of national importance. No doubt, it has presented the country abroad in bad light.

Some analysts wonder at the present state of confrontation between the judiciary and the military which have often been seen as allies in the past. This confrontation shows that some strains have cropped up in their relationship which has otherwise been accommodative since the days when Justice Munir validated the dissolution of the Constituted Assembly by the then governor-general Ghulam Mohammad under the “doctrine of necessity” in 1953.

Since then civilian and military rulers in Pakistan, from time to time, have attempted to subjugate the judiciary, eliminate the political parties opposed to them and undermine the growth of constitutionalism in order to ensure their domination and control.

The coercion and palatial conspiracies sabotaged the political development on democratic lines in the formative years of Pakistan in accordance with the vision of Quaid-i-Azam Mohammad Ali Jinnah. Basically, the problem between the independent judiciary and the state started with the latter’s total disregard of the law and the constitution and a major emphasis on authoritarian ways on the part of the civil-military bureaucracy, mingled with the personal desire of some misguided elements to grab power at the cost of national integrity, political stability and economic prosperity.

Further, to create a favourable institutional base, the military regime curtailed the role of the political elite, who resisted its rise to power, through the infamous Elective Bodies Disqualification Order (EBDO) in 1959. To intimidate and tame the bureaucracy, thirty one officers from the prestigious civil services, foreign office and police force were removed on the charges of corruption and inefficiency.

The judiciary suffered a severe blow during Gen. Zia’s military rule. He used the card of Islamizing the Pakistani society and suppressing the popularity and existence of Pakistan People’s Party to survive the storm that the latter may whip up and also to perpetuate himself in power for long time to come. He customized and tweaked every thing in that direction. And to realize this twin objective, he deemed it necessary to control and tame the higher judiciary. For that, he introduced Provisional Constitutional Order (PCO) that damaged the entire façade of the judicial structure. The Supreme and high courts were rendered ineffective. Their judgments delivered against martial law decision were annulled with retrospective effect. The PCO also required the higher court judges of the four provinces to take fresh oath of office, demonstrating their loyalty to the new constitutional dispensation. The judges who were opposed to the PCO and the martial law regime were not offered new oath. And as a result, many judges resigned.

According to Hamid Khan, one of the CJP council members and former Supreme Court Bar Association president, when General Musharraf took over in October 1999, judiciary was the first institution to face the wrath of the military rulers. When military takeover was challenged before the Supreme Court of Pakistan, Musharraf and his fellow Generals feared that the apex court might give a verdict against the military government. They were desperate to seek legitimacy of their regime. When these cases were fixed for hearing by the Supreme Court, things came to a head. Judges were forced to abandon their oath to protect, defend and preserve the Constitution and instead take another oath under the Provisional Constitution Order (PCO) passed in October 1999.

As a result, the Chief Justice and five other judges of the Supreme Court did not take oath under the PCO and were forced to quit. On the other hand, seven judges led by Justice Irshad Hassan Khan, who were already hand in glove with the military rulers, took the oath under the PCO. He was rewarded with the office of the CJ of Pakistan.

The fact remains that the military’s confrontation with judiciary, an important pillar of the state, does not auger well for the national integrity, political stability, economic prosperity and growth of constitutionalism in the country. Even before the suspension of the CJP, Gen. Musharraf had himself conceded that the federation was weak and needs political consensus and cooperation of all the political forces in the country to have stable and prosperous Pakistan. But the action against the CJP on the part of the president has plunged the whole country into a judicial chaos, with serious political and economic fallout. And this time the legal community and the press are playing the role of a vanguard to oppose the domination of the military over the country’s polity and civil institutions. To pacify the situation, let me put it in Gramscian terms that the military as one of the dominant social groups in matrix of Pakistani society needs to give up its hegemony over other social groups. It must sacrifice its corporate demands and create a collective stake, and, finally, accord full respect to the constitution and independence of the judiciary for the sake of national unity.

The writer is associate professor in department of international relations, Shah Abdul Latif University, Khairpur, Sindh

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