What started as an im­par­tial and sec­u­lar in­sti­tu­tion im­bued with the finest British tra­di­tions of jus­tice and fair play has given way to a politi­cised, theo­cratic in­sti­tu­tion vy­ing for po­lit­i­cal power

India Today - - SIGNATURE - Yasser Latif Ham­dani The au­thor is a Lahore- based lawyer and has writ­ten the forth­com­ing book Jin­nah: Myth and Re­al­ity

The ju­di­cial his­tory of Pak­istan is as patchy as the po­lit­i­cal his­tory of the coun­try. What started as an im­par­tial and sec­u­lar in­sti­tu­tion im­bued with the finest British tra­di­tions of jus­tice and fair play has given way to a politi­cised theo­cratic in­sti­tu­tion vy­ing for po­lit­i­cal power, while re­tain­ing some of the trap­pings of colo­nial gran­deur ( we still ad­dress the judges as “my lords” or “your lord­ships”). The evo­lu­tion of Pak­istani ju­di­ciary has to be seen in the con­text of three other fac­tors in Pak­istan’s in­sti­tu­tional struc­ture— the par­lia­ment/ ex­ec­u­tive, the army and re­li­gion.

In the early years of the new repub­lic the sec­u­lar and mod­ernist char­ac­ter of ju­di­ciary as an in­sti­tu­tion was self- ev­i­dent in many land­mark de­ci­sions, as in the case of the pro­ceed­ings of the Court of In­quiry con­sti­tuted in 1954 un­der Pun­jab Act II of 1954 to in­ves­ti­gate into the dis­tur­bances in Pun­jab in 1953, which had been un­der­taken by re­li­gio- po­lit­i­cal par­ties such as Ma­jlis- e- Ahrar and Ja­maat- e- Is­lami, which had been routed in the 1946 elec­tions, against the Ah­madiyya Mus­lim sect in or­der to un­der­mine the Mus­lim League gov­ern­ment. Sir Zafrulla Khan, the for­eign min­is­ter in the League cab­i­net and one of the found­ing fathers of Pak­istan, was an Ah­madi and a tar­get of ag­i­ta­tion by the Is­lamist par­ties.

The Court of In­quiry con­ducted a mam­moth in­quisi­to­rial pro­ceed­ing where the two judges, Jus­tice Mu­nir and Jus­tice Kayani, in­ter­viewed Mus­lim schol­ars of ev­ery con­ceiv­able sect in Is­lam. Con­clu­sions of this re­port make in­ter­est­ing read­ing. The judges were forth­right in declar­ing that: 1. Pak­istan was con­ceived as a sec­u­lar state by Muham­mad Ali Jin­nah. 2. An Is­lamic state is a mi­rage not worth chas­ing. 3. There is no univer­sal def­i­ni­tion of who is a Mus­lim and it log­i­cally should not be the busi­ness of the state. 4. The ag­i­ta­tion was the re­sult of petty pol­i­tics played by re­gional politi­cians to un­der­mine the Mus­lim League gov­ern­ment.

A ju­di­cial re­port of this kind of would be in­con­ceiv­able to­day when Pak­istan has es­tab­lished its own nar­ra­tive of an ide­o­log­i­cal Is­lamic state as rai­son d’etre for the cre­ation of Pak­istan and has con­sti­tu­tion­ally de­clared Ah­madis to be non- Mus­lims for the pur­poses of law and con­sti­tu­tion.

The ear­li­est blow to democ­racy in Pak­istan was dealt by the ju­di­ciary through the Tamizud­din case re­ported as PLD 1955 FC 240, the ra­tio of which prac­ti­cally set off a down­ward spi­ral for the coun­try. The point on which the case turned was es­sen­tially a tech­ni­cal one. In 1954 the Gover­nor- Gen­eral of Pak­istan, Ghu­lam Muham­mad, had dis­missed the Con­stituent Assem­bly and re­placed it with a coun­cil of min­is­ters. Against this ac­tion, Tamizud­din Khan, the pres­i­dent of the dis­missed Con­stituent Assem­bly, filed suc­cess­fully a writ at the Sindh High Court un­der Sec­tion 223- A of the Gov­ern­ment of In­dia Act, 1935. Sec­tion 223- A had been in­serted by the Pak­istani leg­is­la­ture to pro­vide for writ ju­ris­dic­tion of the high courts. The Fed­er­a­tion ap­pealed to the fed­eral court which, af­ter trac­ing the his­tory of do­min­ion con­sti­tu­tions in the British Em­pire and Com­mon­wealth, con­cluded that since the gover­nor- gen­eral had not given his assent to the pas­sage of Sec­tion 223- A, writ ju­ris­dic­tion was not vested with the high courts.

Then came the Dosso case PLD 1958 SC 553, which arose out of the sta­tus of the Fron­tier Crimes Reg­u­la­tions in Baluchis­tan, chal­lenged le­git­i­mately as be­ing ul­tra vires the Con­sti­tu­tion of 1956, and which laid the ba­sis for the doc­trine of ne­ces­sity which has plagued the coun­try’s con­sti­tu­tional his­tory ever since. The Supreme Court through this de­ci­sion le­git­imised Gen­eral Ayub’s mil­i­tary coup against the civil­ian gov­ern­ment on the ba­sis of Kelsen’s the­ory of rev­o­lu­tion and le­gal pos­i­tivism which saw rev­o­lu­tion as a le­git­i­mate means of chang­ing the gov­ern­ment. Gen­eral Ayub Khan be­lieved that par­lia­men­tary democ­racy was not suited to the ge­nius of the peo­ple of Pak­istan and that the coun­try needed a pres­i­den­tial form of gov­ern­ment where the Pres­i­dent of the Repub­lic was to be elected through a group of elec­tors called “Ba­sic Democrats”. Ba­sic democ­racy sys­tem was es­sen­tially a con­sti­tu­tional cover to the ex­ist­ing feu­dal so­cial or­der as Ba­sic Democrats in­evitably were elected from ru­ral no­ta­bles and would in­evitably sup­port the sta­tus quo and the pow­ers that be. In 1962, Ayub Khan en­acted a pres­i­den­tial con­sti­tu­tion em­body­ing this com­plex sys­tem. The tu­mul­tuous events of 1969 and 1971, which led to the in­de­pen­dence of Bangladesh, buried this con­sti­tu­tion and its sys­tem, bring­ing the par­lia­men­tary form of gov­ern­ment back in Pak­istan.

The Dosso judg­ment was over­turned in the Asma Jil­lani case PLD 1972 SC 139, which an­nulled Kelsen’s the­ory of rev­o­lu­tion as a valid le­gal prin­ci­ple. Un­for­tu­nately the tri­umph in this case was short- lived. Gen­eral Zia- ul- Haq mounted a coup against Zul­fikar Ali Bhutto’s demo­cratic gov­ern­ment and this coup was le­git­imised through the doc­trine of ne­ces­sity or Id Quod Alias Non Est Lic­i­tum, Ne­ces­si­tas Lic­i­tuin Facit— spelt out in those terms for the first time but in essence a vari­ant of Kelsen’s le­gal pos­i­tivism— in the Nus­rat Bhutto case PLD 1977 SC 657. In 1979 the ju­di­ciary presided over the ju­di­cial murder of Zul­fikar Ali Bhutto.

Gen­eral Zia needed Is­lam to le­git­imise his il­le­git­i­mate rule and one change so ef­fected was the cre­ation of the Fed­eral Shariat Court through a pres­i­den­tial or­der in 1980. This con­sti­tu­tional amend­ment made through pres­i­den­tial de­cree was later saved by the 8th Amend­ment to the Con­sti­tu­tion. The Fed­eral Shariat Court now ex­ists as a par­al­lel ju­di­cial track that deals with mat­ters of Shariat. The es­tab­lish­ment of this in­sti­tu­tion

THE 1990S SAW A TU­GOF- WAR be­tween the demo­crat­i­cally elected gov­ern­ments of Be­nazir Bhutto and Nawaz Sharif and the ju­di­ciary.




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