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REVIEWS IN BRIEF: The question of judiciary

April 21, 2012

“On March 9, 2007, Mr Justice Iftikhar Muhammad Chaudhry, Chief Justice of Pakistan, heard several cases till about 10.30 a.m. The Bench headed by him rose briefly and had to reassemble for the day except the Chief Justice who left for the Army House, Rawalpindi, to meet the President of Pakistan, General Pervez Musharraf[…]

After exchanging views about certain formal matters, General Pervez Musharraf told the Chief Justice that he had received a complaint against him from a judge of the Peshawar High Court. Justice Chaudhry replied that the complaint was not based on true facts and that the particular case was decided by a two-member bench of the court. He further said that attempts were being made to maliciously involve the other member of the bench as well. Thereafter the General stated that there were a few more complaints against the Chief Justice and instructed his staff to call other persons. These other persons who barged into the room included the Prime Minister, Director General Military Intelligence, Director General Inter Services Intelligence, Director General Intelligence Bureau and some others. Almost all of them, including General Pervez Musharraf, were in uniform and they in one way or the other, put pressure on the Chief Justice to immediately resign from his office. He was even assured that if he resigned he would be “accommodated”. The Chief Justice resisted all such offers and flatly refused to resign[...] The Chief Justice attempted to leave but he was forced to sit and stay in the room.

After 5 p.m. he was allowed to go. He then came to know that in the meantime oath of acting Chief Justice had been given to the next senior most judge, Justice Javed Iqbal, who after receiving a reference from the President, had convened a meeting of the Supreme Judicial Council on the same day[…] The national flag from the house of Chief Justice was removed. His cars were towed away and his residence was taken over by police. All possible means of his communication with the outside world were cut off and he along with his family was virtually made a prisoner in their own house.”— Excerpt from the book

Abrar Hasan’s book, Independence of Judiciary and Judicial Crisis, comes at a time when there is much debate about the role of the judiciary, particularly with regards to the question of the judiciary overstepping the bounds of its constitutionally mandated sphere.

Hasan takes us through the origins of the doctrine of separation of powers, both in theory and in practice. He argues that historically in a number of countries the judiciary and the executive have been at odds and that in democracies, except in Malaysia if you consider it to be democratic, ultimately it is the judiciary which by virtue of its exclusive authority to interpret the constitution and the law has prevailed.

The book is a must-read for students of law to understand the origins of the doctrine of separation of powers and the concept and meaning of the rule of law. Hasan demonstrates that in the establishment of the rule of law in a society there will be an inevitable tussle between the executive and the judiciary to determine the limits of their authority but that it is the judicial institution that eventually sets the limits, not because it is necessarily right but because it is final. The narrative recounts the judiciary-executive face off in the United States, India and Malaysia, and posits that as the Pakistan judiciary begins to demonstrate its independence the executive reacts to it as a perceived encroachment of executive authority.

The book is also a welcome addition to the chronicles of the Pakistan lawyers movement as it is a first hand account of Hasan’s experiences at the helm of the Sindh High Court Bar Association when the tumultuous events of 2007 were being played out. Conceived while he was in jail during the Musharraf-imposed emergency, the book meets its stated purpose “to elaborate the importance of the judicator and trace down the history of independence of judiciary”.

The complex concepts of judicial review have been laid out in a language and form that even a non-expert reader can comprehend. — Muneer A. Malik

Independence of Judiciary and Judicial Crisis (LAW) By Abrar Hasan Sindh Balochistan Law Reports, Karachi 327pp. Rs1,200