Women lawyers march in a torchlight procession in Rawalpindi-Islamabad during the hot summer of May 2007 in support of reinstating dismissed Supreme Court Chief Justice Iftikhar Chaudhry. - Photo: Tanveer Shehzad/White Star Photos
Women lawyers march in a torchlight procession in Rawalpindi-Islamabad during the hot summer of May 2007 in support of reinstating dismissed Supreme Court Chief Justice Iftikhar Chaudhry. - Photo: Tanveer Shehzad/White Star Photos

JUDICIAL progress is much like that of a mountaineer. Two steps forward, one step back. Only those unfamiliar with it expect it to be linear, smooth and steady. Those familiar know that it is anything but. This forward movement and backward slide are inevitable in a federal republic with a written constitution. Such a system of government reflects the desire of a sovereign people to be ruled by a popularly elected government that adheres to the fundamental law.

The twin ideals of popular administration and legal limits are not always compatible. No constitution completely resolves this conflict. It is expected that politicians prepared to accept a corrective to their well-laid plans and judges who cautiously feel their way along instead of diving head-first into the hottest political cauldrons of the day will create room for play in the joints of the constitutional machine. With experience a balance will be found.

The way we began made seeking the centre more difficult. The judicial administration had not been set up to exercise a check on the colonial administration. It was designed to be a part of it. While the fairness of the judicial processes and the independence of the judiciary was much publicised, the scales were not evenly balanced in contests between Indians and Britishers or between the colonial administration and the people.

Matters deteriorated with the rise of the nationalist movement. The Indian press started challenging the representation of British justice as neutral, independent and impartial. As British justice played an important role in legitimising colonial rule, the press and the politicians demonstrated that colonial justice was as flawed as the colonial administration. This criticism was an attack on the legitimacy of colonial rule. Judges now acted with determination to quell the rising tide of nationalism and press criticism. British justice defended British rule.

Judicial overreach is no less dangerous than executive control of the judiciary. Courts achieve little when they try to do much. They are at their best when they operate away from the political thicket and gently nudge the nation in the right direction.

Not only were the courts a part of the colonial administration and a source of its legitimacy, they also had no experience in dealing with federal questions and constitutionality of laws. Although in 1919 a policy of decentralisation was adopted the provinces were invested with a legal personality for the first time in 1935. Till then the constitutional design of India was not predominantly federal. Even the Government of India Act, 1935, neither recognised any fundamental rights of the people nor gave the courts the constitutional authority to review the legality of administrative action. This was the position on the eve of independence.

With the death of the founder of the country, a year after independence, decline in the popularity of the Muslim League, challenges to its authority by regional parties, delays in calling general elections and failure to frame a constitution, an increasingly unpopular government turned to judges for help.

Dissolution of the Constituent Assembly by an unpopular governor-general plunged the courts in the biggest political dispute of the day. The decision of the Federal Court, in the Tamizuddin case, to uphold dissolution made the decision as controversial as dissolution. Public criticism was no longer mild. Gloves came off.

In a series of cases, in quick succession the court tried to correct the balance. The governor-general was declared to have no authority to make provisions as to the constitution through ordinances. He was required to summon a Constituent Assembly. A number of specific conditions had to be met before this body could be regarded legal.

Not much appreciation was expressed for these decisions. Today, popular memory recalls Tamizuddin as the first step down the slippery slope of judicial acquiescence in executive excesses. The role of the court in reigning in the governor-general and framing of 1956 Constitution receives little attention.

Two years later, the 1956 Constitution was abrogated. Martial law was declared. Its validation, in the Dosso case, hurt the judicial image further. That, in the circumstances, there was little that the judges could do to undo martial law was seldom acknowledged. The courts clawed back by keeping the regime within the limits of the 1962 Constitution, robustly protecting rights, striking down the ban on a political party and by a progressive reading of the law of habeas corpus. None of these judgments altered popular perception. Tamizuddin and Dosso continued to cloud the public mind.

The declaration of Yahya Khan as a usurper and his martial law as unconstitutional, in the Asma Jilani case, improved matters somewhat. This was, however, short-lived. In 1977, Gen Ziaul Haq declared martial law. Unlike the previous two occasions, the Constitution was not abrogated. Several of its provisions were suspended and control was exercised through Martial Law Orders. The Supreme court validated these actions by invoking the Doctrine of Necessity. It also gave Gen Zia authority to amend the Constitution.

Matters were made worse by the conviction and sentencing to death of the widely popular prime minister, Zulfikar Ali Bhutto, by the Lahore High Court. All applications that the chief justice was biased and should not hear the matter were rejected.

The Supreme Court dismissed his appeal by the narrowest of margins. The one-vote majority was provided by an ad hoc judge. Two judges who apparently supported Bhutto were excluded from the process. One of them, an ad hoc judge, was not given the extension which would have enabled participation. The other was hospitalised. He could have participated if counsels were directed to submit written arguments. In popular perception and on the legal plane the decision continues to remain controversial. This dealt a blow to the image of the judiciary from which it is struggling to recover.

An opportunity for the Supreme Court to distance itself from this historic wrong appeared when by a presidential reference its advisory opinion was sought about this decision. By then precedents had emerged both in the United Kingdom and the United States where courts had corrected such wrongs even after the death of the persons convicted. After a few hearings the reference was adjourned. More than a decade has passed since the reference was last listed for hearing. The opportunity has been all but missed.

Like in the past, the courts tried to keep the Zia regime within legal limits. They did not succeed. By a series of legal stratagems, martial law orders and by removing troublesome judges, Gen Zia held them at bay. When they finally got an opportunity, the judges responded quickly. They held that elections must be held on the basis of political parties, that even the military regime was required to conform to due process, and dissolution of the National Assembly was unconstitutional.

Much the same pattern was repeated after the coup of Gen Pervez Musharraf in 1999. A unanimous court, in the Zafar Ali Shah case, validated the coup and like in the case of Gen Zia gave him the authority to amend the Constitution. This time there was not much of an effort to regain lost ground. With some minor aberrations the retreat was almost complete. It continued till the relaxation of military control provided an opening and Gen Musharraf overreached by attempting to remove the chief justice of the Supreme Court.

Restoration of constitutional government between the Zia and Musharraf years and post-Musharraf should have given judges some respite. That was not to be. They remained in the political vortex. Dissolution of the National Assembly and dismissal of prime minister Benazir Bhutto, by president Ghulam Ishaq Khan, as well as of the provincial assemblies, by the governors of the provinces, were challenged in the High Courts.

Dissolution of the provincial assembly of the then NWFP was struck down by the Peshawar High Court. All the other challenges failed. The Supreme Court promptly suspended the Peshawar order. None of the appeals were heard and decided till much after the general elections. By that time, for all practical purposes, the dispute had become academic.

In 1993 when the president dismissed prime minister Nawaz Sharif and dissolved the National Assembly, the action was struck down and the assembly was restored. A similar challenge, in 1996, by Benazir failed. The significantly different outcomes and the inconsistent jurisprudence was heavily criticised.

A few disturbing trends emerged with the controversial appointment of a chief justice of Supreme Court by premier Bhutto. As initially he appeared to be favourably inclined towards the prime minister, an increasing resort was made to constitute small benches where he was in majority. Up till now most major political cases had been heard and decided by the full court or by large benches. That was no longer the case. Applications that major constitutional issues be heard by a full court were routinely dismissed. As the chief justice lacked support of his senior brethren, ad hoc and acting appointments were made to support him when larger benches could not be avoided.

Another disturbing trend was the disposal of major constitutional issues by short orders. Reasons followed months later. Instead of reasoning towards conclusions, judges, when they sat down to write, had to find reasons to fit the result.

A series of cases decided by the court concerned appointment of judges to the High Courts and the Supreme Court. Historically, all appointments to the superior courts had been made by the executive in consultation with the chief justice(s) concerned. A five-member bench of the court, by majority, concluded that the views of the chief justice in such consultations were binding and had to be followed by the executive; and that only the senior-most judge could be appointed chief justice. All appointments to the contrary, unless validated by the chief justice concerned, were declared unconstitutional.

A number of judges of the High Courts were, thus, removed. The constitutional protection against removal was bypassed. The chief justice now had a dominant role in all judicial appointments to superior courts. In another case, another five-member bench ruled that if the prime minister advised the president to appoint a judge against the wishes of the chief justice it would constitute a ground for dissolution of the National Assembly by the president. For the first time, in the history of the subcontinent, the role of executive in appointment of judges was practically eliminated.

Soon disagreements between some judges and chief justice erupted in full public view. Judges sitting in benches passed orders against the chief justice. When he tried to hit back, he was restrained from working. He fell victim to the jurisprudence he had created. Now he did not get the full court he sought. His brethren removed him. Article 209 protecting judicial tenure which he had bypassed when removing others was now bypassed in his case.

Critics of this new jurisprudence pointed out that by a tenuous reliance on conventions, the court had rewritten the Constitution, both with regard to the role of the executive in such matters and the manner in which a judge of the superior court could be removed. Decisions in matters which changed the shared understanding and ordinary meaning of the constitutional text, by select benches, whose size and composition was predicated on the will of the chief justice, further fuelled controversy.

Years later, in the 18th Amendment to the Constitution, parliament sought to dilute the role of the chief justice by giving to a Judicial Commission the authority vested in him. It sought to introduce, through parliamentary committee, a role for the executive in judicial appointments. The matter was taken up by the Supreme Court and it appeared set to strike down the amendment. It was widely known that resistance to such a course by two judges prevented such an outcome.

To his credit, the chief justice, who had the majority solidly behind him, decided that consensus was more important than victory. The matter was referred back to parliament. The parliamentary initiative collapsed. The 19th Amendment to the Constitution reduced the role of the parliamentary committee to a cipher. The Judicial Commission survived. But the absolute power of the chief justice to summon its sessions, when he desires, and his control of its agenda, have been the subject of trenchant criticism by its members.

The judicial image recovered somewhat from the unseemly spectacle of judges feuding in public when the court struck down the establishment of speedy military courts and the notification suspending fundamental rights during emergency. Also favourably received was the decision to dilute the complete control vested in a party leader, in defection matters.

The decision of a full court headed by Justice Khalilur Rahman Ramday to strike down the actions of Gen Musharraf in the Iftikhar Muhammad Chaudhary case worked wonders for the image of the judiciary. Never before in the history of the country had the judges been held in such high esteem.

These gains were slowly but perceptibly frittered away when the court used its suo moto and original jurisdiction, as never before, to interfere in matters where no legally manageable judicial standards were available. A large number of judges were removed without any regard to constitutional requirements. Concluded contracts were cancelled, business operations interfered with, buildings demolished, public servants sacked, statutes re-written and dozens of parliamentarians disqualified for life, without due process. Prime minister Yousuf Raza Gillani was sacked for declining to follow judicial orders which were not unproblematic. Prime minister Nawaz Sharif was ousted on a curious reading of jurisprudence ranging from parliamentary privilege to income tax.

Suo moto jurisprudence, since the heady days of chief justice Chaudhary, has ebbed and flowed depending on the disposition of the chief justice. The other disturbing trends of the last decade of the previous century have, however, not receded. The disputes between judges are now regularly aired in public. The chief justice continues to remain the master of the roster. Applications for constitution of full court are made more often than ever. They are routinely denied. Issues of far-reaching constitutional significance are decided by benches of three to five members. Sometimes by a bare majority. Wide new doctrines of uncertain provenance, which allow judges to read things into the Constitution, are introduced by the smallest of benches with the narrowest of margins. While the small size results in a quick and efficient outcome, it diminishes the authority of the court.

Momentous matters are decided by short orders and reasons not released for months. The court commands confidence by its power to reason and persuade. In the absence of reasons, it is difficult to persuade anyone that the decision has been correctly arrived at. The delay in reasons lends credence to accusations of constitutional rewriting. It does nothing to subdue raging political passions.

Divisive political issues do not get resolved by judicial rulings. Only the locus of controversy shifts from the public arena and parliament to the courts. The judicial decision is no doubt final. No losing side, in a contentious political matter, accepts either that it has been made impartially or that it is just. Impetuous politicians and their diehard supporters do not move away from their entrenched positions because the courts have spoken. The tide of popular passion does not recede when the matter is judicially decided. It turns against the person of the judge and the institution of judiciary.

Some controversies are unavoidable. The questions that they raise can be decided by no one, but the courts. By anchoring their jurisprudence in precedent and reason, the judges can garner more support for their views. By speaking with the authority of the full court they can avoid the suspicion that the outcome would have differed had others not been excluded from the bench.

Some of the disputes are avoidable. The court can decline to answer questions which do not lend themselves to adjudication. Political questions which cannot be decided by reference to legal standards should be left to politicians. The humility to accept that some matters are best left to processes of politics and other institutions of the state does not diminish the authority of courts.

Political questions in a federation often reach courts. That does not mean that every such question must be legally decided. The inclination of people to bring such matters to court must not be interpreted as an invitation to government by judiciary. This temptation is as destructive of federal republican principles as any attempt by the executive to control courts. Judicial overreach is no less dangerous than executive control of the judiciary. Both ultimately threaten the fundamentals of constitutional government.

As the developments of the last few months have demonstrated, the courts achieve little when they try to do much. They are at their best when they operate away from the midst of the political thicket. By gently nudging the nation in the right direction, by providing guidance in constitutional norms, by taking a long view of the fads and furies of the day and by giving space to the politicians to act wisely or foolishly, they help establish the federal government of which they are an indispensable, co-equal branch. Neither so acquiescent that constitutional limitations become illusory for the rulers of the day nor so dominant that the judges overstep constitutional boundaries and threaten their own place in the federation.

The history of our judiciary is a history of search for this balance. Finding it remains a challenge. But once found, it would tether our federation to the principles of republican government.

The writer is a former Attorney-General of Pakistan and is a distinguished lawyer.

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